parties don't contest the substance of the confessions i'm in the briefs or i imagine or are we are in agreement about the contents of those particular and although we certainly want to have everything before us and right before we proceed with making ruling so all right well thank you very again my name is just a hunter formerly with the state of politics fenders office i represent under a cropper before the court this morning and i'd like to focus on issues one and four in the brief which address the doubts and issue and the confrontation mary's or three minutes for rebuttal yes thank you i with respect to the bats in the air we are requesting a very narrow form of relief here a limited remain and in this case because the judge failed to conduct the third stack of the i ask you is the standard view different depending on which argument you make well if the judge you were to have gone through all three steps and come to a determination based on the facts and procedure that it would be an abuse of discretion but where the judge either  the steps or skips the step then the question is truly a matter of right and this quote we've use it to know whether the judge the judge's decision is informed because he or she did not follow the process set up by the united states  court so in this case that's what we're alleging that essentially after the judge procured a comparatively race neutral reason from the prosecutor with respect to right he was seeking to strike a particular african american sure she just ended the inquiry i did not one from a defense counsel an opportunity to show that that reason was pretextual which is a necessary part of the third step and then to did not know had she done so what what would be different what would the transcript say that just say you know ok so the judge allowed the third step what would have happened i imagine in some form or another is that the defense would have been allowed to do prosecutor in his response which is one of the things the judge is tasked with doing and then the judge would be reminded by the defense of lois marshall's actual responses during by theirs which we believe were misstated by the prosecutor and given his basis for seeking to strike her and then the judge would have made a determination based on the rebuttal based on perhaps survey sions and based on the stated reason why they're not this was a pretext for discrimination so there was a very meaty substantive part of the balance and process that did not take place here about that but i would disagree with your honor's reading of the record in the sense that she actually asked counsel to make that comparison because that's exactly what counsel was attempting to do rather what the court that is you had a chance to do that so he is did not she she explained as her reason and she was respectful she did not she explained you had an opportunity defense to make to you to give me that information and that is wrong i am not permitting you to do it now so she didn't ask and that's exactly what the defense was seeking to do and so the question really is the judge's misapprehension about what kind of inquiry happens when the defense could have made a jerk comparison at the first stage and was and did showing and then she asked the state to provide a race neutral reason and the law out of the u s supreme court and out of this illinois supreme court is once the judge requests a prime a fish excuse me  a race neutral reason from the prosecutor the question about whether the defense has made an adequate time to face a case is moot and that's because the question truly turns to the basis of the state neutral race neutral explanation and the court on its own after observing what's been going on with the veneer and careful attention you're saying the court must allow the defendant time to respond or ma out and this is right the defense has the burden of persuasion so just like in closing argument when the state has the burden they are permitted an opening and a closing the defense needs to be able to show that that reason is prete and i think that that reason aids the court and in this case that the reason given by the state was not infidelity with the record but the state did say is that miss miss marshall was against the death penalty unequivocally that is not there were over one hundred jurors that were brought here that was not what her responses were she equivocated but then eventually she said you know i would base my decision on the law i would not refuse to sign a death verdict i would base my decision essentially said i'm not sure how we can show this is a pretextual reason before we know what the reason is because the judge was saying you had an opportunity to show pretext at the first stage by for instance trying to cross a cross comparison your persons and this was an explanation for why she was denying the rebuttal and the defense said yes but they have now stated a particular reason how can you show that that reason is pretextual and i would i would remind this court that the the race been thwarted and not a a clear in reasoned decision the motion and be made so the fact that this woman said that i have an issue with the death penalty or was an issue certainly with the death penalty that's not enough was i would base my decision on the evidence i could sign a death verdict after looking at the evidence and the judge was still none the last after considering that rebuttal and her own observations convinced that that was the state's reason that would have been a proper basis for the state to dismiss this juror but we don't know because we didn't complete the process here and that's what we're asking for something very modest we're asking that the judge be able to complete the process and i think the judge statements on the record reveal that this was a truncated procedure due to a misapprehension of walk because what she said after explaining that the defense didn't have an opportunity to rebut she said this court finds that they the state did offer a race neutral reason so it doesn't go back to you which says essentially that once the state completes the second stage there is no further inquiry either contribution from the defense will work presumably a consideration by the judge that's why those who want cases of the court must allow defense to make a swell of actually this court decided in two thousand of people versus martinez that where the court does what it did he reasons i think it's evident in the court's explanation to the parties where she says it doesn't go back to you they have stated a race neutral reason inquiry over she didn't certainly didn't put any other findings on the record so it seemed as though and then it doesn't go back to you inquiry over so we don't have any discussion after the court expressed its opinion about the defense's opportunity to rebut that the court is still going on on her own and making this determination and what people versus martinez sad is that the court must determine whether the defendant has met his burden again back to the defense's burden of purposeful discrimination by reading the evidence in light of case the prosecutors read the prosecutor's reasoning and any rebuttal by defense counsel and these three these are the three things that the court must consider that's also reflected in the only supreme court's decision of people versus davis where in that case the court never performed the third stage and the court and the earlier supreme court in davis said i read you like this court's review is hampered by the inadequacy of the proceeding below the record is undeveloped due to the way that the court conducted the hearing and so given the enormity of this case it's extremely important that not that this is quite that that's a quote the right consider the stats and play and make a reasoned ruling on the claim with the proper apprehension of the law and that's why we're asking for a limited remount with respect to issue one in our briefs your honour's have no other question time batson in before you jump over to the issue for if i could clarify i'm not pushed safely saying that the the d n a comparisons were an adequate what i'm saying is that there were inadequacies that trial counsel had an obligation to elucidate for the issue yet and the price control misconduct claim is well and the council and the council did not do so and yes primarily we are focusing on the testimony at the deposition of mr donald parker who is the administrator of the state's d n a offender database and also studies out of various states that show that the mechanisms by which we're determining the statistical probabilities here are at least being called into some serious question but as the second district and people versus rocks and notice we don't necessarily have to affirm or substantiate any particular s have the same case we think there is no confession that is rights makes this case a little bit different than watching doesn't it yes it does it does but but if confessions were the old most compelling evidence in a criminal case d is the new most compelling evidence d n a is what juries here and they did they essentially i think it's pretty clear by studies and your observations of this quarter they've pulled up their hands and determined case over when they hear d n a evidence not necessarily scrutinizing the quality or the reliability of d n a evidence but but here is such an issue before so this is the this is these murders would try together all right and we have a number of the victims there patients right yes ok yes and they were and we believe there was a strategy enjoying the cases however nonetheless mr crawford is entitled to be proven guilty beyond a reasonable doubt in each and every one of these cases i'm so the burden of proof and those strictures of the presumption of innocence and the reliability of evidence apply i with respect to each particular victim i think happened here is truly a denial of due process in that evidence i mean i would just note that in watts and you're right we don't have the confession or the lack of the confession that the court considered and watson but the on the low side were there was considered in what's in with ninety nine of the tested ten years before the trial five was considered acceptable but by the time the trial happened in two thousand and ten five truly was no longer the norm five was exceedingly low which is why the and wasn't the person cross examined by defense counsel yes she was and the questions asked and answered relative to this issue five right there yes several not many but there were yes huge advances in d n a technology had occurred and when also correspondingly a lot of increased scrutiny about the reliability of a five lowside match or six closely match or a seven low side and even a nine low side match had started to be race so she was she was not truly an adequate person for the defense to present its theory i'm she was essentially an able to assist the defense in arguing that these five low side matches were inadequate because at the time that she was practicing in the field they worked so well the defense needed to do it is just like they had done it in the luna case present their own expert to testify that the f b i consider to actually reliably identify that that does in fact make an evidence it makes it relevant i suppose it would have to just everyone who was convicted whose case involved five ok and i would have the same argument yes it does it does it doesn't that's th think primarily in addition to the enormity of the of the of the cases there was an interlocutory appeal in this matter which i handled five years ago so they took the entire time to come up to the appeal to be decided and then to be returned in order for the trial to hampered it could have certainly retested the advocates and it's in may have had the defense made a motion regarding admissibility saying that right may have been the case when that evidence was tested ten years ago five was considered reliable anyone else in the entire world and you would have to get into a rocket ship and travel many many planets away before you found anyone that matched this d n a well that may have ben and appropriate  argument to make on the thirteen most i match but it certainly wasn't a five a side match and it's a truly what we're having here is a a i believe it's a problem with the process here where the jury was led to believe through defense counsel rather of challenge and through the state's misuse that this d n a evidence said something that it just did not say counsel to thier western with respect to confrontation i know it is discussed later in the brief but i wanted to discuss it today because i believe that this is the exceptional case that our illinois supreme court in leach was referring to when it's sad that under some circumstances and i'll talk to a reporter and a substitute medical examiners testimony relating the contents of that report implicates the confrontation was dr jones who was the substitute medical examiner in this case she testified as to the cause and manner of nicole townsend over the defense objection the defense objected that forcings request and it was done so and then in the manner in which it normally does so right even in their rendering their an independent opinion in accordance with their own duties as the medical examiner's office ok and what leach also said is we're not prepared to say that autopsy reports can never be testimonial nature and this is from their testimony on nature when the primary purpose according to the beach is for either they have to find the u s supreme court's decisions and  davis decision and that the takes place where the police play a direct role in the autopsy or to accuse a targeted individual and that comes from the williams decision the d n a decision from last year i'm so what we are doing is so really the question being is the medical examiner performing an independent analysis in accordance with its own duties i'll be it knowing that the report may later be used twice is not independent because the medical examiner in this case was influenced by the law death and this is essentially because there was no observable injury and so he handed the examination for police investigation so what we know at this point is that and his own professional qualifications looking at it so she was found and abandoned building he had discussions with the police about the fire history and background of the case which we don't know that we would like to know and but sometime in september a month after live shows performed his autopsy the police faxed him a copy of a report concerning their investigation of this victim and that at this time the police had already recovered four bodies of a very similarly situated or seemingly situated victims so two months after the original out tops the list shows determined that the cause and manner of town since that is strange elation and homicide so the inclusion of what the crime scene looked like it is broken i'm sorry it was not broken in this case and that's and that's i think the problem is that there was no indication one way or the other from her physical body or or using his medical expertise and the police played a primary role in the autopsy which essentially transforms the independence of the medical examiner into one where he is providing evidence for later prosecution which was not the exonerated or air implicated they were slowly meant to implicate and the basis being the police officers investigation so we would argue that this court is presented with that unusual case that feel my supreme court identified as existing cited to the court the young case so illinois supreme court case that specifically denied the defense two things an opportunity to in a batson claim have a continuance to investigate the claim and then an court find that in young because it was based on matters directly within the record and that is the big distinction between this case and martinez and martinez it had to do with excluding a juror who had read a newspaper called the defender and the court and that in that bad some claim just stacked the analysis and said i find that facially valid period and so so this court basically said ok that's the second step now go back and consider whether that has an impact what impact  have is it a genuine reason is it a persuasive reason that that's the difference in the mightiness case it's external and there's no there's no weighting of it is not directly before the court the court can't read the person's mind so there has to be something moved on in young it was directly and the record and the quote was involved in every bit of the voir dire as the court was here the court was a very hands on and recognize that many many of the view near have real concerns about the death penalty including lois marshall self i think that's the big distinction in this case those are the points that defense made i think the three stages clearly were here the court and ask you know give me something give me a characteristic give me a similar juror give me something i think the court here clearly was very hands on and why dear recognize the concern and i think that these three stages have certainly been been met here if you have questions about bats and let me turn to this d n a piece because i think the that they don't know enough to challenge the d n a in this case this case was about reasonable doubt what was the defendant faced with in this case the defendant was faced with a defense team was faced with a man who planned his murders he had a type of victim he selected he would get rich quick cocaine he had a killzone stayed with him he knew the neighborhood he selected certain types of victims he used his offer of black throughout every one of his cases he  chose his time in place he gave his explanation as to his motivation he was justified they were going to trick him they were gonna do what they had agreed to he had jacqueline in most of her times with no condoms by his own admission in each of these cases he would have a disposal routine where he would take their pants in their shoes and one case even so the shoes in another case he took jacket he colored some of the bodies to avoid discovery he moved some of the bodies for the same reason he was well aware of what was going on and he knew the surtees were looking for him he even moved to the rest side to avoid having to be involved in the buckle swabs sweeping he followed the crimes in the paper he gave videotaped confessions with highly detailed very specific information right down to the color of the buildings and whether they had inside stairwells or outside and when there was a three by three ottoman in one case the incredible recall of this individual is what  the defense team in this case this is not a watson where there is a simple residential burglary that some hairs are left and we have a car show match at p c r testing levels not just about the thirty five versus thirteen ok notion that you can take judicial notice of proto verse that was never in the record below here is very objectionable to the state but you don't even have the complete record and then right by the way the student text for it was also supplemented to the record something that hasn't even been offered here but many times i think p testing has not been an issue in any of these cases it's not the same kind of testing it's a different and signed based heston a fragment and i'm going to be an expert but i noted that when i looked at three variabilities within each of those those sites and so the f b i treated fiber site is sufficient there's been no children any of the material that has been cited any of the references any of the scientific studies that were looked at in light or even discus if you had the entire attachment which we object to the attachments all but if you haven't heard here's what you would see the color white doesn't disagree with random ranch probability and our partner says i'm not a serious titian i can't answer questions about stat but there are different apparently there are different variations and a wheel is within the numbers and my understanding is it's not even same number of locus not even the same word i it's different markers within the gene structure and that is why this really points out why we don't want to start here on appeal when we don't have a record we don't have expertise we don't have ever serial testing of this whole issue and certainly an appeal we try to take apples and we compare them to oranges and then say you should make the same concerns and i don't think there's an expert out there that i could find in my review of all the research that even makes this challenge with regard to a filthy test and we had some discussions awhile ago with opposing counsel about the fa and my understanding is why are so p was replaced by p c r testing is because you needed so much d n a that it was problematic in primes in type samples where you only have a small amount one other piece that's important is when you were talking about these auto searches through the databases that have been raised in some of these cases the f b i doesn't do our fell piece or ching and neither does the illinois database so there's no the only thing that you would come up with is the constant daily information and the patricia dunn information because those have been retired and now are showing thirteen most i matches and that is precisely why i mean here you have my client who is apparently the king of d n a in these cases making amazing arguments and he chooses not to challenge it here by because he could allow the inference to sit out there that why we have some thirteen miles high in these cases but only five in those cases and he did cross examine each of these analysts and he got them to say as they would honestly do that this state police have changed and they're now doing p c r testing and so that inference is out there is just a matter of reasonable doubt and they're just promenades and it allows the defense to argue that there's not enough physical evidence in these cases and that the only person that links these people to their fate is super charles so it was definitely a trial strategy by a dream team of defense attorneys and to argue now that testimonial but in this case we not only have dr live shots who as defense correctly notes originally pending the investigation but there were toxicology reports that needed to be completed no doubt there was material that needed to be developed from the crime scene so in this case the state of the body was actually pending the investigation and then the two months later once you got the necessary information made his decision but he wasn't here to testify and the medical examiner dr jones came in and said i've reviewed everything and it is my opinion that that this person has a cause of death i homicide as well and it's based on and dr jones gave her the information that she based her consideration on which is all ordinary information that a medical examiner bases are considerations on so this is not the rare exceptional case in which the leech exception needs to be examined in fact at the time these decisions were made it would be almost two years about a year and a half before the defendant was even identified so this wasn't about targeting somebody this wasn't about preparing it for a prosecution this was your ordinary medical examiner finishing cases closing them out staffing them and dr jones talked conduct the third step of the bats an analysis again as it didn't it's brief the state i believe misleads with respect to the judge's inquiry of defense counsel the judge accepted that the defense had made me a pr aphasia case and if he had run more information the defense likely would have given it but expected it so therefore hamstrung the defense listened to the race neutral reason and then complained that he didn't have more from the defense when it did not need the defense the opportunity to do just that so i please i urge you to look at the record with respect to the the judge's exact science i mean with respect to young young was about rather a continuance could be granted for the defense to substantiate in these cases so yes although there are cases that this court has recently seen on d n a testing those are about p c s you are testing and that's because that's what we use now that's the reason why those cases deal with that particular method and not the stale and outdated method we have with respect to six of these victims with respect to leach finally just just did not actually state that i'm strangulation was her medical opinion which she said is that there were other possible causes of death some of which were non criminal including for instance cocaine overdose and there was cocaine in miss townsend system i was she said that dr lister says opinion was based on a lack of injury  and therefore it was an inconsistent with strangulation bag presumably many other things were not inconsistent and then when pressed on cross examination by the doctor live shows conclusion was within a reasonable degree of medical certainty she said i don't know i could be more sure if i had done the exam and that's why proper was required and was entitle to have dr lith show it's a valuable to him to ask him of death was undetermined and he didn't he said it was strangulation based on their independent medical or physical basis and therefore we do in fact within the narrow window that leech left open for testimonial reports made by medical examiners