and the reforms that this court adopted in its rules and the reforms that the legislature adopted and since then i've been studying the cases that have come before this court with death sentences and i've noticed that in addition to having many many fewer death sentences per year the cases which this court sees have a lot stronger evidence of guilt than before there are no more ross or not to my knowledge anyway no snitch testimony there's almost always some strong forensic evidence against the defendant there's usually a confession there's usually  witnesses and there's usually some combination of circumstances whereas when i first started doing death penalty litigation in the eighty's in this court there were a lot of circumstantial evidence cases there were a lot of  informants there a lot of accomplice witnesses there were a lot of snitches and there wasn't very much florence of governance and the relevance of that difference to this case is that this case is somewhat of a throwback in that word dependent on circumstantial evidence of guilt in this case there's no confession there's no why witnesses and the  cutting both ways that points to two offenders rather than one and while it ties the defendant to his parents then and the other two murder victims a sister and his brother in law it's there's really no forensic evidence which incriminates my client there is of course the fact that in his vehicle when he was arrested there were some latex gloves found in a plastic bag   and also there was a presumptive blood test run on on that those gloves which suggest there was blood there but there was a fingerprint on that plastic bag which wasn't my client's and wasn't matched to anyone involved in this case and that's a concern to me as to how those flaws got in my client's car and at the first murder scene the sister and brother in law's home where there was blood all over the place there were two shoe prints that were never matched to anyone and or to any pair of shoes a guess i should say or pairs of shoes and that suggests there were multiple offenders and in the car that the state theorizes was used to transport the parents bodies from another circumstantial item which was very damaging to my client was the fact that in his car in addition to these gloves there were there was a watch which belonged to a brother in law and there was a rain which was the engagement ring of katherine and my client testified that those items had been left at at his parents home and he was going to bring them back to his sister and his brother in law but he forgot to do so there was however a videotape from a store in which catherine was a customer a few hours before she was murdered and although that tape was of poor quality the video didn't show a ring on on catherine's hand and so i'm suggesting that there are some problems with the state's theory that my client committed these murders alone and in that conjured claves theory be rejected and states s all i'm trying to do mr chief justice is is suggest this is not an overwhelming case in that the errors which i'm going to go onto now should not be held harmless there because the jurors were distracted from the possibility that there were two other offenders two different shoe patterns and that the and the other offenders would have matched these unmatched fingerprints and it would better explain such things as how this fire was burning so strongly four hours after we know my client went to midway airport all these things suggest to me that the state's theory that my client acted alone could be wrong and that there could have up to other offenders who committed the crime and may even if they're on this bag of bloody gloves in a my client's car now i'd like to go on to these he areas that i think were issues the first thing that troubles me is that the jury several times heard that the defendant surviving sister jennifer was of the opinion that my client was guilty now to me this is extremely prejudicial because no one knew the victims and the defendant better then the defendant's sister and for the jury to hear that she believed that if the defendant was guilty was compelling evidence it would have been something that you jurors would have been impressed with they would've likely discussed how damaging that was to the defendant now in my opinion such opinion testimony has no relevance and shouldn't have been admitted there was a motion in limine you filed and it was denied  cross examination of jennifer defense counsel tried to blunt this by suggesting that that had led to a rush to judgment by the police and then later when the detective testified that jennifer had told him that a waiver is no sir in my reply brief i cited three cases from this court which hold that one in motion and lemonade is denied that preserves the issue even if the defense subsequently goes into that evidence and that should be the law as it has been in this court for a number of years because defense counsel can't just sit back and take the most damaging aspects of of improperly admitted testimony he has an obligation to defend his client as best he can by trying to blunt that evidence and here defense counsel tried to do that by suggesting that that irrelevant opinion of jennifer was used investigation yes this no is the answer to that question it was not the state argues that the police investigation is a necessary element and more to the point that it puts the my client's response to the police officers statement of this in some kind of context that explains why he said it but neither of those things is important relevant or necessary on the facts of this case the state relies on a case where the defendant confessed to his brother and then the police confronted him with his confession to his brother and then he confessed again but the facts here are that w by the police officer with jennifer's opinion of his guilt my client said oh i understand why you're talking to me and i don't think that the statement i understand why you're questioning me or talking to me is in any way incriminating any way relevant to guilt or innocence and even if it was that statement could have been brought out without the the prejudicial opinion  of his sister so it wasn't relevant and it was greatly prejudicial now i'd like to move on to another error which i believe occurred and that's that three times the jury heard that los angeles police considered the defendant potentially dangerous very dangerous or merely dangerous and that had no relevance it was their opinion it was hearsay it should never have come out the first time it came out there was an objection and the judge correctly sustain the objection and told the jury not to consider the second time it came out defense counsel inexplicably didn't object to it and the jury was last two three to consider it the third time it came out defense counsel again objected and the judge again to sustain the objection but this time rather than telling the jury to disregard it he said that it was relevant to show what the witness did next but couldn't be considered for the truth of the matter asserted and what the witness did next was get on to a telephone call this was an air  southwest airlines employee the defendant was flying back from los angeles to chicago what the witness did next was make a phone call but the the fact that a phone call was made really has relevance because although the state there arises that my client must have thought oh they're calling the police or something and therefore he changed flights and flew back to chicago and instead of going to naperville to talk to the police he's he fled through wisconsin the point is that my client had no way of knowing what this phone call was about therefore it had no no relevance and th los angeles police opinion that my client was extremely dangerous had no relevance but the jury must have been struck by well the los angeles police think that eric is a dangerous person if they think he's a dangerous person that southwest airlines agent or whatever she reported defendant's presence to her supervisor right there was right as the morning right and the the trial judge in the second woman instructions you're only to consider that only insofar as it explains what she did in talking to her supervisor right but you can't consider as being a truthful statement just in so far as that explains what she did right and i'm just trying to you would made some mention  and i missed it with respect to that your client had no way of getting into the conversation that did the agent even go into the conversation with the super right or the record doesn't show how far my client was away whether my client could hear what she was saying whether my client knew who she was calling so i don't think the record shows that what the defendant did in changing flights was a reaction to this telephone call i think the record shows that the l a police had told southwest airlines that the defendant was very dangerous and that's what the jury took away and your question also reminds me i should say that these different reactions to these three different references to the defendant being considered dangerous by a loss angeles police must have led the jury to be very confused about what they could consider and what they couldn't consider and least once there was no objection and so the jury was led to believe they could consider that the los angeles police thought he was dead and then there were two inconsistent  struction zhan to what degree they could consider it so my point is the that the jurors must of thought it was confusing as to whether they could consider it and it was therefore damaging to my client for the trial issues i want to talk about the jurors hearing that my client had had threatened to kill his sister catherine who was and indeed murdered and then this brings up the for f by wrongdoing evidence from rule or the hearsay exception or a confrontation clause exception and in my work or seeing a lot of this every every capital case in the last year where the defendant knew the victims prosecutors are seeking  evidence of something the victim said about the defendant now my position here is that this case is unlike stacked lee or lovejoy or the other cases that this court has considered forfeiture by wrongdoing for two reasons one is that in in stacked leaf as a good example you have testimonial evidence which was highly testimonial statements which were highly reliable by the victim in the sense that the victim made solemn statements to the police or through medical staff of a prior sexual sexual assault and you ha similar evidence and lovejoy and there are other cases where this court is going to be confronting this but here we have a prior statement by catherine to her sister there's three different dates given by her sister as to when this conversation took place and i'm troubled by the lack of reliability about this statement because it's not testimonial because none of the traditional hearsay exceptions apply to it and because it's two sisters talking on a telephone conversation saying that this is something they can't go outside the family just doesn't have any of the indicia of or a liability which i think the and then catherine was said to respond is that a threat and the defendant said it was a problems that was easily characterize as a threat but it was a threat that fell far short of i'm going to kill you and also the threat as jennifer testified to it as related to her bike from catherine use some profanity and was much more prejudicial than the vague threat in the latter so my answer to your question justice freiman is it's only inadequately corroborated to be know yes he according to allison he made a similar statement to her not i'm going to kill you but it was similar to what he recounted in in his letter to his cousin  something to the effect of you've got to stay out of my business or you're going to regret it in your in your response to reliability as to that even coupled with the letter would be the same responses you know yes because allison testified that he the judge is finding that there that there may have been a motive but at least by a preponderance to keep somebody from testifying but once that determination is made by a trial judge i think the trial judge needs to go on and consider what is this testimonial is it reliable either is there any cooperation and the trial judge didn't do that and and i'm suggest let me give you an example of let's say that instead of of  allegedly catherine saying the defendant threatened to kill me what if she had said something like i had a dream last night that the defendant is going to kill me there's no basis to know whether that's reliable and of forfeiture by wrongdoing cannot be a rule that allows anything prejudicial to the defendant in a murder victim says to comment all i'm suggesting is that this court needs to carefully consider the scope of forfeiture by were wrong doing and to give you an example the only legislature sense this trial has passed to codifications the forfeiture by wrongdoing the first one fifteen ten point six includes a requirement reliability the second ten point seven doesn't i pray that you recognize the wisdom of the first and reject the shortsightedness of the second oh if reliability for their common law apparently doesn't require reliability and i think common law is applicable to this case and these statutes are not applicable to this case but i'm suggesting to you that illinois evidence law which this court establishes should require reliability because if it doesn't you're going to have a lot of unreliable after that statute and after my first brief was filed the legislature passed a second forfeiture by wrongdoing statute one fifteen ten point seven and it does jury in mitigation about the conditions that a death row inmate or a life in prison inmate would experience at a place like menard or or pontiac or state inexplicably in the course of the direct examination defense counsel asked this witness what would happen to eric if he took out a correctional officer and the witness answered well he could be put in segregation or his is disciplinary great could be changed on cross examination the prosecutor seized upon that  question that opening perceiving that it opened the door to going into all the examples of how or or specific examples of prison murders inmates of correctional officers or correctional staff from the years eight hundred sixty five when abraham lincoln was president until two thousand and seven when there was a murder of a correctional officer at stateville didn't the defendant mr witness what would happen if my client took out a correctional officer and the witness answered he would be disciplined with sort of haitian well if that is that being the case why isn't this f questioning when the doers may know how to i mean the suggestion is he's he would be confined he nobody would be injured when the door is opened it's opened by testimony that's harmful to the opposing litigant here defense counsel actually prejudiced eric by suggesting that eric might be a future  danger so the prosecution wasn't prejudiced by that so there was no need for them to drive the nail deeper by going into completely irrelevant all the rigs samples of specific murders by ask the question in the first place and it was even more in effect of to not object to the cross examination one it went on for several pages talking about in one thousand a d there was a murder of a medium security prison  i also argued it was plain error tried to cover the waterfront my point is that the opening the door the rationale doesn't work here on the on these facts and let me put it to you this way we search if it's good offense if the prosecution had asked about some future dangerousness name it's certainly no you wouldn't have been proper cross examination for the defense to bring out all the examples of good conduct by every by every inmate in the department of corrections and so the reverse is also true you simply cannot have aggravation that has nothing to do with my client as an individual aggravation has to be focused on on the individual defendant just as mitigation does and in this instance the prosecution was asking was was suggested to the jury that they needed to safeguard correctional officers for conduct that my client had no knowledge of or no role picture for the jury of this person even if the threat that they were where used to handle him in prison the questions leading up to this take out a guard question were suggesting that he was they were asking questions like well what if the i can't remember them exactly so on paraphrasing and i want to make it clear he was asking questions like well what if the defendant is insolent to a guard or what if the defendant doesn't follow the rules and the answers were well he can be punished he can he can lose his privileges on death row he can be reduced in grade and things like that and then i think defense counsel just wasn't thinking very clearly and ask about taking out a guard and that was really damaging to eric because it suggests that he might do that and then it got much more damaging when the prosecution seized upon that to further prejudiced him with all this the relevant stuff about what other inmates did in one thousand nine hundred and two thousand and seven and other other correctional facilities so for those reasons i'm asking your honour's to grant my client either a new trial or to  issues that my colleague just addressed at the outset it's important to note that the defendant has never neither is opening brief in his reply brief or not made a sufficiency of the evidence challenge so these these factors or this evidence is relevant only in so  it goes to the plain error or stricklin analyses and those are important because all but one of defendants have a den cherry claims were not present for review and are subject to either playing error analysis analysis so if i could start with those just briefly it's important to note here it's true there was no direct physical evidence linking the defendant to these crimes but there was x an extremely overwhelming amount of circumstantial evidence here by the defendant's own testimony he put himself in his parent's house at the very time his parents were being shot three gunshots drilling into the head boards moving of the bodies opening of the garage door moving of mattresses that the defendant claims he heard none of this we know however from allison beck's testimony that ron defined it was a very light sleeper and two that from that basement bedroom you could hear what was going on on the floors above we also know that he told his cousin bob startled her but he didn't sleep at all the night before that his back hurt we know from the neighbors testimony that about one fifty in the morning when she went out to walk her dog every single light in that house was on including the above ground  basement bedroom window so that find it was not sleeping through this window he was awake he then fled to california surreptitiously returned to illinois he was still telling detective niles that he was in los angeles in fact he was back in illinois and he was then later arrested as he drove north through wisconsin is evidence of flight is consciousness of guilt when he was arrested in his car were found his sister's wedding ring his brother in law's rolex watch and a bag with two pair of bay tech scrubs with his blood on them matching his father's d n a consistent with his mother's d n a his explanations for how these things were in his car just implausible he's given different stories about how the rolex watch was there at trial i believe he testified that jennifer had brought it over or i'm sorry kathy had brought it over to their parents house on the previous each day and he was returning it jennifer however testified that in a letter that the defendant wrote to her after he was arrested he gave a different explanation at that time he said that james no longer wanted to watch and gave it to terence hansen who then gave it to him so he's given different stories on this the story about how the sister thirty thousand dollar wedding ring got into his possession is just implausible jennifer testified that she did not take that wedding ring off she would not have just left it at her sister's house was the  reason first of all that the jury saw the video tape i believe the jury saw the videotape videotape like that is not going to be clear evidence of whether the ring is on her finger what's more important is whoever killed the victim took the wedding ring off her finger we heard testimony from the medical examiner that her finger was broken ring finger the only thing that was broken is broken in a way that suggests that something was touching was tugged at so that the ring was on her finger when she was killed and whoever killed her took that ring it brief i'd just like to address some of the the defendant talks about fingerprint evidence this first all this evidence was heard by the jury was brought on cross examination and the jury simply rejected it applied its common sense to the overwhelming circumstantial evidence in this case and it found the defendant guilty the defendant he points out that there was a fingerprint on the ziploc bag that was with the gloves and as it was to be more precise it was a fingertip prints and it was tested against defendant's fingertip print and was found not to be a match however this bag came from a box of ziploc bags that was in the parents house at the fingerprint analyst was not able to compare it to the parents fingerprints because by the time she did her analysis the parents had already been buried and there were no fingertip print samples from them so the fingerprint could have been from them we don't know who it could have been from likely it could have been from them it came from a bag in their own house the defendant's explanation that two mysterious strangers who for all we know have no motive have had no idea these strangers how would they know that the house in a row and the house in naperville are somehow related so that when they kill the katherine and james in a row they then know that the house in naperville is where the parents live whoever did this was extremely close to this family and knew these relationships so the defendant's explanation of a mysterious stranger doing this and planting a bag with gloves in his cars is simply not believable and or are you still taking the position that was i think the defendant overstates that as well and again this too was brought out to the jury which rejected it the testimony was that there were four partial shoe prints found in the house if i recall and i went back and looked over the testimony the other day i don't believe it's clear that there were two separate shoot prints made but the testimony was was first of all there was no official comparisons of these made i believe the evidence technician testified that two of the partial shoe prints appeared to have similar patterns there was no testimony at the other partial shoe prints had different patterns so we don't necessarily know that it was two different shoe prints we don't know what shoes the defendant was wearing when he was in the house or when he made his multiple trips to the house so we were never able to compare the prints against his shoes so again these these sort of issues are distractions and they can be affected when brought out to the jury but here the evidence which is overwhelming that the defendant committed these crimes and the jury applying its common sense drew the rational inferences from the circumstantial evidence and found the defendant guilty if i can then no further questions on those on that issue i'll move on and i'd like to briefly address the issues raised by my colleague in the order he addressed them he first points to the first points to the testimony from detective niles that he told the defendant that jennifer thinks you did this first of all it's important to note the standard of review here but the defendant didn't mention that this is an abuse of discretion standard the truck court's decision to deny hear the evidence was clearly relevant the defendant argues that it wasn't relevant to show what the defendant's comments in response to that were i disagree with that it was relevant for that purpose but was relevant for a more important purpose but it was relevant to was showing not the defendant's comments in response to that statement but his actions following it why did the defendant who was in l a and who had told detective miles that he was willing to meet with some her of his detectives in los angeles why did he then surreptitiously return to illinois without telling detective niles and in fact lying to detective niles and telling him he was still in los angeles it goes to showing his consciousness of guilt and his intent to flee and it was clearly relevant now again of course if there was a risk of prejudice from that evidence that substantially outweighed that probative value then the trial court in its discretion could've refused to allow it to be entered the court here found otherwise and i don't believe that the defendant shown that that was an abuse of discretion in other words that it was so unreasonable or so arbitrary of a decision again just briefly on the waiver issue i think the defendant does point out cases where when a motion in limine a is denied it's not a waiver for the defendant to then go into that evidence but here if you look at the testimony i think you'll see that the defendant's questioning of jennifer went beyond the scope of that motion and limiting the motion in limine was directed towards the statements made to detective niles now once that motion when it was denied and the state was allowed to question  the defendant didn't simply cross examine niall's about those statements the defendant affirmatively asked jennifer herself about her statements and sort and broaden the scope and it was the defendant who brought in jennifer's own thoughts on the matter rather than simply the not hearsay purpose for which detective neiers own statements to defend were brought in and again simply even if it were eric to bring this in it was harmless error in light of the fact that the defendant was done able to use this testimony to his own benefit essentially and to argue a rush to judgment based on that the airline testimony here too it's important to note the standard of review the defendant's claim here is that his lawyer was ineffective for not objecting to that second reference so again the stricken standard applies but fun has to show first that that failure was deficient performance and then second that he was prejudiced by it in other words he has to show that there's a reasonable probability that had his lawyer objected to the second reference it would have been a different result and i he i just he can't show that here i mean did object to the third reference and got a proper limiting instruction informing the jury to consider it only for the not hearsay purpose that explained mr taylor's actions and not to consider for the truth of the matter asserted had counsel objected to the second reference and down that instruction a little earlier it simply can't be said that there's a reason the probability that in that instance there would not there would've been a different result again does this testimony was relevant for the purposes that it was introduced it was relevant to showing this taylor's actions and it was relevant to then showing how the defendant reacted to those actions upon seeing her make that phone call and then mysteriously disappearing from that terminal going to another  he obviously the defendant is is on edge with sprint he's he's suspicious he sees the airline agent make a phone call and then he laughed and so it does the jury son we can draw the inference that so the jury says well why why did he then leave he just bought a ticket to fly back to chicago why did he mysteriously leave from the from that airline go to a different airline and buy a ticket into o'hare so the jury certainly could draw on that inference and it was certainly relevant for that purpose but again it's just important to note that this is a strickland claim and ultimately he has to show prejudice and he simply can't do that here not apply this is purely a matter of illinois state law of evidence the second concession that the defendant just made is that he does not challenge the trial court's finding that he murdered catherine with the intent to prevent her from testifying the trial court made that finding and he's not challenge that that's important is that is the only finding required to under the common law doctrine of forfeiture by wrongdoing and that's action point for another reason the defendant raises the spect that if a separate showing for liability is not required to open it will open the floodgates to all sorts of unreliable testimony from deceased witnesses the fact of the matter is that the finding that the defendant not only murdered the victim but with the intent to prevent her from testifying not an easy showing to make the fact that the court found that drastically narrows the the category of hearsay that is a law being under this exception it only allows on hearsay  from a defendant who intended to keep the victim from testifying when it does in such cases the furniture by wrongdoing exception equitably extinguishes the defendant's rights to the hearsay rights and confrontation clause rights prevent now it's important to note that the common rod doctrine has never required a separate showing of reliability it's not to be found in the federal rule about events which the supreme court in davis vs washington noted is  separate showing of reliability the defendant in his reply brief cites to united states versus densa it's important to note that the back case in fact explicitly declined the defendant's invitation to require a showing of  liability a separate showing of them does she have a liability or trustworthiness but that case did was to say that of course the general rule of evidence in the federal system it's refer to three and that's the rule that says if he prejudicial effect of servitude and substantially outweighs its probative value then otherwise admissible evidence can be deemed inadmissible and of course that rule applies as it does to any type of evidence and it would apply here but again that's a question for the trial court and it's claimant has mentioned a dream and that's brought in here even if it were relied on to require that the statement here was clearly reliable first of all jennifer was subject to cross examination so essentially one defend points to jennifer's motive to lie or her problems with her testimony those are all solved by cross examination of jennifer herself catherine statements in fact were cooperated with and made a similar threat to allison immaterial the fact of the matter is he conceded to bob that he threatened catherine in that very circumstance at that very time so again the the these the things that were kind of points to why they might go to the way the jury should give to this testimony they don't go to and again it's important to know here to the standard of review this testimony was not objected to and therefore it's subject to reversal only under a player board under the standard we find it now seems the urging of str yes i can see that the conviction should be vacated but the conviction in no way affects the sentence and it's it's important to note here jury found three separate independent aggravating factors renders the presence of the aggravating kidnapping factor harmless that's clear from the case law this court's case and federal case law cited in our brief the next question however is did a fact at sentencing decision at the second stage of the proceedings and again here there are two separate issues that i think the court the supreme court laid out in brown versus sanders the first is the presence of that factor create constitutional error and the second is that they did create constitutional rights that are harmless i would say here that the defendant can't show either error harmfulness first time and the issue that is what was addressed in brown versus sanders and brown versus sanders and then this court's decision of people versus patch which were vacated because the evidence didn't support that the question came though did that factor in any way skew the jury's sentencing decision and both this court and the supreme court had that there were no error in those cases because under the catchall factor the factor that allowed the jury to look at all facts and circumstances about the defendant or about the crime the presence of that factor that the jury could not consider any facts or circumstances that it otherwise couldn't have considered so as the court as this court in patch even though the jury should not have considered the defendant's restraint of the victim in terms of it being a felony it was entirely proper to consider the defendant's identical conduct as an aggravating factor and that's precisely what it did here so the fact that the defendant's conduct didn't amount to the felony of aggravated kidnapping doesn't mean that that underlying conduct itself was not aggravating and it was aggravating for two reasons at least two reasons that the jury surely could have considered first there was an attempt to conceal a crime scene and for a while it was successful by moving the body is the defendant conceal the fact that the naperville home was also a crime scene and was also aggravating just for the simple fact that the defendant unceremoniously just his parents bodies from one house to another that's certainly a factor that a jury could could have considered as aggravating so the fact that the jury could have considered those factors under the catchall instruction means that its decision wasn't skewed in any way under brown versus sanders and people versus patch there was no constitutional heir even however even if there were even if this court were to find constitutional there the next step is to go onto a harmless error analysis and this court conducted harmless error analyses  people vs and people versus williams and the defendant points to people vs brown now a case from one nine hundred eighty which didn't apply harmless error analysis that case came before all these other cases i've mentioned and in fact people versus williams noted that cases post brownell have applied harmless error analysis at the court did so in shock and it did so in graham's itself and in fact that sort of analysis is entirely consistent with brown vs sanders which itself was only addressed the error and having not found any or didn't have a need to go on to harmless error analysis were this court to go on and conduct a harmless error analysis this case is entirely distinguishable from people versus shaw and i think the court can say beyond a reasonable doubt that the presence of that invalid factor did not affect the jury sentencing determination here we had a case of overwhelming evidence and aggravation the defendant has not essentially not contested that we have the court where the jury found the premeditated murder aggravating factor and the multiple murder aggravating factor that the murders of catherine and james are brutal we have the defendant attempt to conceal the crime scene we have his flight so we have  the aggravating evidence here was much stronger than it was in shock and the other side of the ledger we have a very very committed getting evidence there was the testimony from the warden which essentially amounted to if the defendant got a sentence of life imprisonment rather testimony from the defendant's psychological expert who testified that he had narcissistic personality disorder which explained that that he lacked empathy for others this was certainly not testimony that the jury would have given very much mitigating weight to so in light of the fact that here even in light of the fact that even if the aggravating kidnapping factor was invalid it was invalid in such a minor way the jury still was able to consider the underlying fact properly considered the underlying conduct the fact that it might have considered the conviction itself was harmless beyond a reasonable doubt in light of the overwhelming evidence of aggravation compared to the extremely weak evidence in mitigation if i could briefly return to the the issue about the wooden steps to moni again this was first it was perfectly proper for the state to inquire to make a limited inquiry into this area an area which was first funding would have to show run the conscious performance was deficient and on this record as in most cases on direct appeal the court is simply not in a position to know whether councils performance in that regard was deficient first of all we don't know whether defense counsel had a strategy indeed i believe counsel mentioned that he could about strategy and disregard this evidence the court simply not in a position at this time to know what that strategy ruds i will note however backed into in assessing counsel's performance the court is to look to counsel performance as a whole not to simply look to one instance and to say from that one instance the counsel's performance as a whole was so below the bounds of professional competence as to be unreasonable but in any event i it simply can't show prejudice here again in light of the extremely overwhelming evidence in aggravation and the strongly weak evidence in mitigation it simply can't be said that there's a reasonable probability that had counsel not brought this up the result of that sentencing proceeding would have been different just spoke apologize for not getting to the aggravated kidnapping if you're interested in so i would like to talk about that the prejudice underground versus sanders on the facts of this case relates to what the jury was able to consider as a result of the invalid aggravated kidnapping conviction eligibility finding that it would not otherwise have considered and on the facts of this case we have the testimony from the  who conducted the autopsy that the heart would keep beating for some period of time in some situations after brain death and this was capitalized on by the prosecutor  his argument seeking the death penalty because he emphasize that the defendant's parents were moved while their hearts were still beating and he several times emphasize not only that but that but that they had already found the eligibility factor so that was another eligibility factor that they could consider that they shouldn't have considered in the and the also emphasize that they had already found that the defendant should be convicted of the substantive offense of aggravated kidnapping and this case is similar to the cases i rely on in that respect because it went beyond what the jury otherwise would have heard in pash the basic problem was they charged him with aggravated kidnapping when there was when in fact there was no there was no secrecy about the kidnapping that but there was but the person had been held hostage so this court said in that case that it's the same conduct issues that you just prosecuted under the wrong felon the description but here there was no aggravated kidnapping the parents were brain dead within moments of being shot i have no way of knowing where their hearts were beating but that's irrelevant because they were dead so there was no kidnapping and it always troubles me when my opponents argue harmless error because the aggravation is overwhelming in theirs and they characterize the medication as  insignificant it only takes one juror to spare any of my clients a lot and in recent months jurors in cook county have spared two defendants  the brown's chicken case who brutally murdered eight people and in the andre crawford case he's a serial killer he was convicted of murdering a leavened different women and two jurors held out against and who's to say that couldn't have happened in eric hansen's case if the jurors hadn't been overwhelmed with this future dangerousness stuff we had people being murdered in one nine hundred eighty at at  some medium security prison in two thousand and seven in state don't they give the correctional officers names and and the prosecutor raises the emotional appeal of the hearts beating when when the bodies were being moved all i'm saying to your honor's is that the aggravation may have been strong but it was pretty much limited to these convictions these these four murders and there was mitigation my client spent a life time in special education he had attention deficit hyperactivity disorder it learning disabilities his mother several times  tempted suicide because her husband was having an affair my client's not a saint but he's a human being and any one juror could have spared his life and so i think that  for the for the system attorney general or state's attorney to to characterize this is harmless there is inaccurate and unfair to my client's opportunity to be sentenced to apply if there's a proper sense i'm not saying you can't apply harmless there i'm saying that you shouldn't apply a harmless error just because the prosecutor characterizes the aggravation as overwhelming because it's not overwhelming and because even if it were there may be some mitigation here which a single juror could have latched on to somebody who was sympathetic to a special education students game and we should rule i understand you don't like your argument as to what i don't like or what i don't like is the excessive use of harmless error in a context of the death penalty which can be such a subjective judgment but it would be arrogant of me to tell you that you can't say it's harmful say i'm just asking you to be more cautious in applying the doctrine in this context this is unlike the trial context where there's a unanimous jury saying the guy's guilty in a death penalty here you'd only takes one it only takes one juror with some modicum of empathy based on the evidence based on the mitigation and that could have happened in this case just as governments question was difficult for me but all i'm saying is don't don't rush to harm as they are in in the death penalty context thank you i would ask th