it please the court counsel i'm allan andersen the office of the state appellate defender and i represent dion banks in this capital case mr banks's death sentence resulted from a capital sentencing hearing that was tainted by irrelevant evidence of how the department of corrections runs its prison system and by unreliable unconfronted hearsay testimony about a prior murder the first issue i'd like to discuss is issue six that deals with the state interview introducing irrelevant evidence of privileges that the department of corrections affords the general population of inmates in the state of illinois the state called glen davis the records keeper for the department of corrections testify at the second stage of the sentencing hearing  mr davis testified that and a defendant who sentenced a natural life would be placed in a maximum security prison that would have fewer programs he said vocational training adult education a ged program it would have a library with books and magazines the inmates can take those books and magazines to their cells it has a commissary which he describes as a store within a store or store within the institution and mates can buy food and clothing they can buy a radio they can buy a television they can take their radio they take their television to their cells he testified to get to go outside to the yard two hours a day they can play basketball softball they can jog and they can just socialize with the other inmates then on mr davis testified it's possible to transfer to a more lenient institutions where they might have day rooms with televisions where you can watch t v all day some show movies some bring in outside entertainment groups for the benefits of the inmates some have colon area arts programs with shops auto repair programs auto detailing programs then in contrast a state called robert griffin an assistant where the death row is the located and he testified that death row inmates only get to go out to the art five hours a week now i list all that information because it simply is not relevant at the second stage of a capital sentencing hearing l evidence is relevant if it has some bearing on the circumstances the offense the character of the defendant or the rehabilitative potential of a particularly defendant the savvy say had nothing to do with the circumstances the offense or mr banks his character the south carolina supreme court held that this type of evidence is not related to a particular defendant's rehabilitative potential because it is not tailored to him as an description of how any inmates would would you know behave or interact or what privileges they have it's not tailored to how mr banks would interact with the other inmates there is no mention of that and secondly i would point out th the state has adopted a different position from what it did at the trial at the trial it was not presented in any fashion to show how mr banks would interact with inmates in the department of corrections it was presented to show that mr banks should be sentenced to death because prison sentence is too easy and let me quote at length from the very end of the state's rebuttal argument at the second stage of the capital hearing they want a minimum he doesn't deserve the minimum he deserves the penalty of death deon bad thanks he gets what he wants don't give him what he wants life in general population is like sending him do his room when you think about sending him do his room remember he tried that before this is what you get sent him to this room so what does he do gets up then he goes and has some recreation in the yard goes the commissary hangs out in the dietary swaps and stories with some buddies maybe later a little bit to eat maybe over to the library that's his life in prison maybe he could talk to some people about some of the crimes he's committed then sit down for a new d v d watch a movie don't forget in prison he gets visits that's the last thing he said this isn't anything about how he interacts that's not how it was presented at all it was presented simply to show that because of the way the department of corrections runs its prisons prisons is a nice place and deon banks doesn't deserve to be sent to any place where there are all these privileges he deserves to be killed is there any is there any part of  being in the journal really i don't recall that they link it to this gentleman's testimony and they did certainly taught at great length about you know what a jerk my client is in prison and you know that the low level misbehavior they brought out ias but this was this is entirely separate and that argument shows that it's just pure and simple it was an argument that you know he's going to have fun in prison and therefore he should be sentenced to death it is a position that you of evidence that it really is yes the state argued as they do in every single issue that the evidence was harmless but i don't believe that's the case if you think about the way people react to prison you know this country club prison is part of the lexicon of the united states anymore people don't like the idea of inmates having pretty privileges they don't like the idea particularly of pain for inmates having privileges and i think this is a very powerful argument that shows you know it appeals to jurors you know if you talk to people about why they support death row one of the executions one of the things they'll tell you is why should i pay to keep this guy alive for the rest of his life after the horrible thing the things that he's done and this argument this evidence that plays on on that irrational it's not necessarily irrational but it shouldn't have any any place in the sentencing hearing where the evidence should be the decision should be based on the crime and the circumstances and the defendant's rehabilitative potential now whether or not we want to pay for keeping him alive  addition to being irrelevant the this type of evidence interjects an arbitrary factor in into the sentencing hearing and as this court well knows a capital sensing hearing is supposed to be devoid of arbitrariness  know if the state can prove that the department of corrections runs this apocryphal country club kind of prison then we're going to see more death sentences because jurors are going to want to send people to this fancy nice prison system on the other hand if we were to if the department of corrections were to go up about course and run an incredibly harsh very punitive very vindictive prison system with no privileges everybody on their cell twenty four hours a day i guess we could expect to see far fewer executions far fewer death penalties and that's our bitch very because it has nothing to do with the crime and it has nothing to do with the defendant it has everything to do with the administrative the policy decisions of the department of corrections and that's the main reason that the south carolina supreme court held that this evidence was inadmissible because it's arbitrary and this court long ago held that the defense cannot present evidence of how excruciating an execution can be because it has nothing to do with the defendant and it has nothing to do with the crime and this is exactly the same type of thing it's a policy decision how you execute somebody it's a policy decision how you run your prison system and and that one of the other major underpinnings of the supreme the south carolina supreme court's decision was this notion that they had also forbidden presenting evidence  executions were were excruciating so the logic here it is that this evidence simply is irrelevant and it's arbitrary and it shouldn't be admitted furthermore when you if you commit this type of evidence this court is really going to open up a can of worms that's going to alter the way that capital sentencing hearings are conducted if the state can show that prisons are nice places we're going to show that prisons are bad places we ought to be able to bring in the incidence of aids in the prisons incidence of tuberculosis sexual assaults beatings we should bring able to be able to bring all that in i mean are we going to have capital sentencing hearings that come down to the quality of the food that they get this is the type of thing it's going to be a trial within the trial and it's all going to be a referendum on how the department of corrections runs its program and that's not what the second stage proceedings ought to be would you be making the same argument mr interest if they could link up  you know what happens in the general population versus personnel the specific you know if they could show that that the defendant was a psychopathic predator i would have no argument but that's not not what they did here even the south carolina supreme court said if you can tailor this evidence to the particular defendant then it would be you know admissible there's no problem there so my argument is you're you'd use euro denial you know the argument and it relies on that closing argument that where it is just an argument that prison is nice and he doesn't deserve to be sunk in a reasonable inference would not be enough i mean the fact that you'll see officials did testify as to his abusive behavior and what happens in the general population isn't enough if the link goes well and particularly in this case where there's no evidence at all that he's going to any of these medium security institutions that he's taught to i mean he's got a natural life sentence he's going to menard then they never showed that he was going to be able to avail himself of any of these of these programs and they amber even made an attempt to have that these witnesses testify that mr banks would be at a minimum a medium security prison availing himself of of the woodworking shop or the auto classes and they absolutely didn't do anything like that you know that in the tribune week there was a an article about twenty one year old who ran it had a seven year sentence for arson and they sent him to menard and put him in the cell with a thirty five year old psychopath and the guy was begging to be let out of the cell and the guards ignored him and the psychopath strangled him and he was quoted to death and he was quoting the tribune a saying he was delivered like the lamb of the blood of a lamb to me whatever that means it means something to a psychopath i suppose and one of the guards was quoted as saying it's my job to make sure they don't escape it's not my job to make sure they're safe are we going to be able to call that guarded every capital sentencing hearing to show that prison is a bad thing questions the next and final issue i'd like to talk about is issue seven it's a crawford issue you know and i'm going to argue that this court needs to apply the right to confront witnesses the sixth amendment right to confront witnesses to the second stage of the sentencing hearing the aggravation mitigation stage where it currently doesn't apply now but the evidence of relevant to this is at the second stage of the sentencing hearing in this case the state called an attorney barry gross who testified that he was an assistant state's attorney in one thousand nine hundred five he worked on the murder of alfred evans during the investigation he had a gentleman named mark carrington testified before the grand jury carrington's now dead narcotics they walked a couple blocks to a building carrington testified that mr banks told him to wait outside mr banks went inside and carrington saw him talk to two people in the hallway of the building he saw mr bank shoot one of the men in the back carrington testified that he immediately fled and that is he ran away he heard more gunshots and he testified that he met mr banks later that night mr bangs told him that he shot these people as a retaliation because  credit been shot so it was obviously a gang hit which is what the state argued at the second stage this was evidence of a gang hit carrington also told the grand jury that he given an assistant state's attorney a statement and  five assistant state's attorney gross had read that statement to the grand jury so he read it to mr banks a sentencing jury as well now the state also presented the testimony of glen jackson the chief records officer from the department of corrections and i won't go into all the detail but he testified to but he described for incident reports where apparently the state couldn't locate the guards who had written them and he read the incident reports and he also testified that his records show that mr banks had a a grand total of one hundred thirty three violations during his time in the department of corrections counsel should the rules of evidence be estrange and in  sentencing hearings is they are in the guilt phase are you or is there some difference and and secondly are you spazzing that there should be that we should not more stringent standards for death penalty cases than other criminal cases which answer yes i would the second question first this is definitely an argument limited to death penalty cases i have no desire to extend it to any of the general sentencing hearings there are  great distinctions between capital sentencing hearings there are more whites it's more trial like you have a right to a jury have the right to counsel none of those rights apply at a general sentencing hearing now at the first for the first question that this doesn't really affect the illinois death penalty statute at all that statute relaxes the rules of evidence all this does the right to confront witnesses witnesses isn't even a rule of evidence it's a procedural rule about how certain evidence can be admitted he only the state could still present testimonial hearsay they would just have to we would just have to be able to cross examine the you know or had a chance to cross examine the person if he was unavailable no other rules of evidence would be would be affected the statute wouldn't be affected because it talks only in terms of relaxing the rules of evidence and this isn't a rule of evidence so i would not be arguing at all that any any rules of evidence have to be changed at all simply put this court would just have to hold that he defendant has the right to confront witnesses at the second stage and as i said justice scalia made it clear in crawford that that's not an evidentiary ru g that the state's evidence in this case was very prejudicial and it shows why we need the right to confront witnesses at the second stage you know the person that we couldn't cross exam examine because obviously we couldn't cross examine mr carrington at the grand jury and the defense pointed that out and there was no argument and there's not cross examination of grand juries he's a codefendant probably he's easy company another gang member to the scene of the shooting so is testimony is presumptively unreliable at least we would like to be able to show that he's a codefendant and that it's presumptively unreliable you know his story suspicious mr banks orders him along but then when they get to the shooting mr banks tells them to stay outside what did  bring them along for so they'd have another witness against him you know probably carrington's right there all along and he's minimizing his his participation but we can't show that because he's dead did he decide to get on the bus first you know did the police catch him first and the see through on mr banks on under the bus so he can get a better deal we don't even know whether there were any deals we could never ask carrington's testimony tainted because he got some sort of deal for  implicating mr banks we don't know and then finally to move away from from from mr carrington's problems you know he testified that mr banks is a gang general which is a bad thing and mr banks in some of this aggravation the state presented they have been claiming to be a gang general when he's in the prison but it's interesting that the department of corrections could never corroborate that and they they found that his claims you know couldn't be on corroborated well now we've got carrington who we can't cross examined you know claiming that mr banks is a gang general and you know that's particularly prejudicial when in issue three we note that mr banks was tried by a juror who does not like gangs and it's not as if any jurors like gangs but this juror you know and wire dear said my op my husband's a sergeant in a police department he deals with gang crimes he talks about gang crimes all the time and i don't like gangs so your have this very prejudicial gang hit testimony mr banks is supposedly a general in the gang coming in and you've got this one juror amongst the others who doesn't like gangs and then a capital sensing hearing or when any one juror can prevent the death penalty from being imposed i think that that's an important point it's also very prejudicial because you contrast this retaliatory cold blooded premeditated gang hit with the murder that happened in this case i'm not going to say this wasn't a horrifying crime they all are all these death penalty crimes are mr bank shot at a what was convicted of shooting a woman in front of her children in broad daylight in a parking lot and she's taken him to the movies i mean that's pretty bad but you know it's just a botched carjacking by a drug addled crackhead you know he didn't intend to kill or that's obvious he told him to get out of the car he would have told her to get out of the car if you meant if he was going to intended to kill or he just wants the car she was shot in the hip you know he's standing right next to the car the driver's window if he wanted to kill or he could have shot a right in the head you know in contrast to this incompetent drug ad crying that cost this woman are rife you have this premeditated gang hit and you know we can't bring out anything to show that maybe the premeditated gang hit was mainly carrington's idea or  you know i have to admit to c s i don't i don't not familiar with that case i don't it doesn't require overruling any of this court's precedent that has held that cross examination does not apply at the second stage of the sentencing hearing because at the time those decisions were made they were perfectly correct they were made roberts first as ohio was decided in one nine hundred eighty when this court was starting to formulate its death penalty jurisprudence and you know our sources ohio required relevance and reliability and that's what this court held it was necessary at these second stages and it's only since richard much because this is because it was a holding that indicated that here's  doesn't change any of the rules of evidence however if they want to present the testimonial hearsay described in crawford then they have to allow us to present to cross examine but testimonial hearsay court has not held that it applies to the sec you know that dick the selection phase of a capital sentencing hearing various state courts have held that it does california north carolina texas you know the largest m i guess i'd like to address maybe what you know what i would call this decision really wouldn't be that big of a deal to illinois jurisprudence you know it i've already touched on the idea that you wouldn't have to overrule any prior decisions because they were correctly decided at the time this court would just be recognizing that crawford has you know they have all sorts of words for to see change or whatever but it's fundamentally offered a lot of confrontation and this court would just be modifying changing its jurisprudence to reflect that change you know it doesn't in any way if what affect the validity of the statute i've touched on that the other rules of evidence all the rules of evidence can still be relaxed you just have to afford confrontation for this one particular type of of hearsay you know texas florida california they've all managed to sentence people to death while affording the defendant the  right to cross examine witnesses at the second stage of the sentencing hearing it's really not going to hamstring the state and as justice thomas i believe touched on it it really is a new rule i don't see that it's even going to affect anybody who is already in any of the dozen or so people who are already on death row it's a new rule they were operating under the old rules of procedure they wouldn't have any grounds for challenging their death sentences on the fact that they weren't afforded the right to confront witnesses so again i don't think that this change would really affect the way things have been done and it would merely for a certain type of evidence you know a lot of cross examination the final point i'd like to make is about the states that have refused to extend the the right to confront witnesses to the second to that selection phase of the eligibility hearing they all rely on this case williams versus new york that's from one nine hundred forty seven one nine hundred forty nine it's sixty years old now you know when that case was decided the right to confront witnesses hadn't even been applied to the states it was a due process case it's just a now moated view of the way capital sentencing hearings are conducted and the main point there was that there's no difference between a capital sentencing hearing and and a general sentencing hearing a sensing hearing in any other case and it's just the scarman you know her question brought out that's not our position here now there are huge differences right to the jury you way that general sentencing hearings are conducted and it's those differences that require the right to confront witnesses to be applied at the second stage of the sentencing hearing and that would include my presentation are there any other questions i could answer for the court thank you mr chief justice steve members of the court i am assistant state's attorney kelley of the cook county state's attorney's office in chicago this court should affirm the first degree murder conviction and corresponding sentence of death for the defendant deon banks which were more than warranted in this case on march twenty fourth two thousand and one this defendant decided to go to the parking lot of ford city mall in chicago with his codefendant chicane a physio to steal a new car when they arrived the defendant selected a car belonging to a woman named rose newberg a young mother who had simply come to the mall with her two young sons quincy age four and tyrone age five to see a movie and enjoy some time together as a family attendant decided that he wanted rose's car he was not going to let anything stop him even the fact that the newborn family was still inside instead defendant broke the window pulled rose out through the broken glass threw were on the ground and shot her while her children watched from the backseat then defendant got in the car and drove away with tyrone in quincy still in the back and rose lying on the ground defendant eventually let tyrone in quincy out and during his attempt to escape w he shot at joseph harris and his pregnant fiance retreating a smith who were involved in a car accident with his codefendant in engaged in a high speed chase with police defendant was arrested only after he crashed his car into an elevated train platform defendant was then identified in two separate lineups the first identification was made by joseph harrison who identified defendant as the man who shot at him and his fiance from a green intrepid the second identification was made by john southward a witness who was at ford city mall at the same time as defendant and the new bern family mr southward identified defendant as the man he saw drive away in rose new burns car defendant was charged with first degree murder attempt first degree murder armed robbery aggravated discharge of a firearm aggravated vehicular hijacking aggravated kidnapping and possession of a stolen motor vehicle the people filed a notice of intent to seek the death penalty and defendant was subsequently found guilty after a jury trial of first degree murder and aggravated discharge of a firearm a jury subsequently found the defendant eligible for the death penalty based on his commission of the murder during the course of another felony and the fact that defendant had a previous conviction for murder in one thousand nine hundred six based on a gang related shooting of alfred evans after defendant was found eligible for death the people presented witnesses and testimony in aggravation and defendant because then in his mitigation ultimately the jury sentenced defendant to death and he now brings this appeal in regards to the two issues that defendant has addressed here sentence of death this testimony was appropriate in that it was both relevant and reliable which is the standard for admissibility at the second stage of the sentencing hearing and this testimony was properly admitted for three specific reasons first the testimony was properly admitted because it spoke to the issue of defendant's future dangerousness which has been found by this court previously to be a relevant issue for jurors at this stage of the proceedings specifically the people presented evidence and argument in the form of this and supported it with their argument regards to the issue of defend its future dangerous dangerous  and how the discussion of privileges that would be the received by defendant if you were to receive both the term of natural life or a sentence of death addressed the issue of the future dangerousness and specifically during the course of the people's closing arguments and i will quote to this court beginning from page twenty nine thirty eight of the record he is a violent person a violent criminal even when he was sent to prison he made threats and intimidated you heard the statements he made to those guards i got twenty five years there's nothing you can there's nothing you can do you better not turn your back frets that were continued to be made over the years that he was an ideal see if he goes back to prison for the rest of his life what is to stop him maybe he'll get sent to tams but that would only be after someone gets hurt or even killed the only way to protect the people that work indio see civilians the guards and the medical staff is to put him on death row will he will where he will be locked up in people will be protected from him because if he knows that he's going to spend the rest of his life walking around the yard lifting weights playing basketball watching t v he will do whatever he wants he will treat his sentence as a joke when jackson came in and testified how he made how you make an earn right he hasn't done anything to earn rights for privileges in fact he's done anything but earn rights he's done the opposite continue to be violent continue to threaten and hurt and destroy people's lives he's going to continue to do that if he is sent to jail for the rest of his life so this shows that the people's decision to admit testimony regarding the privileges that would be available to the defendant was admitted for the purpose of the people explaining that if defendant receive these privileges that there would be people in danger be it other inmates or other individuals who guards prison staff and so it speaks to the issue of defendant future dangerousness and it also speaks to the issue of defendant's ability to be rehabilitated in the sense that there's offending claimed that he presented evidence and testimony in mitigation that he was in fact a peacemaker in prison that he attempted to dissuade sits situations with other prisoners he presented a guard who stated that she relied on defendant as someone to calm down situations for her with other prisoners so it's relevant what kind of interaction the defendant would be having with other people especially in light of the testimony that was admitted regarding his past behavior this is a defendant who clearly would not have the ability based on his past behavior in the illinois department of corrections to interact with people at this high level this is an individual who has shown that he doesn't have the ability to adapt to a life in prison especially one with this much freedom and this much privilege and this much interaction with other people and certainly that's reflected by the testimony of the illinois department of corrections officials the cook county jail officials and the other individuals who testified regarding defendants poor interactions not only with other inmates but with illinois department of corrections officials and finally the testimony that was admitted regarding privileges was appropriate because ultimately the issue at this stage of the proceedings is what is the appropriate sentence for this defendant based on the circumstances of his crime his background his character and any and i me other relevant things about this particular defend in looking at what the appropriate sentence is for a defendant certainly the jury has a right to know all of the information about what life would be like for the defendant on death row and if he received this of natural in regard to the second issue raised here by defendant today the crawford issue i'd like to start by addressing the question that was asked by justice carmen which was is there some difference between a trial and a sentencing hearing that calls for there not to be an application of crawford and certainly if you look at the idea  behind crawford and the idea behind the confrontation clause itself the idea is that a defendant has the right to confront his accusers to confront the people who are accusing him of some crime and certainly in the context of a trial where there's a determination being made of one's guilt or innocence this makes sense a defendant has the right to confront a person who's accusing him of committing a murder but when you move this into the context of the second stage of the sentencing hearing it simply doesn't make sense defendant is not being accused of anything at this point in the proceedings a determination of the defendant's guilt has already been made  and the individuals who are testifying at this stage of the pursuit proceedings are simply witnesses who are recounting events which already occurred and they're not accusing the defendant of anything and so  the confrontation clause in the protections that were in visioned behind the confrontation clause simply don't apply at this point in the proceedings and it's well established both by this court and by the united states and by this court and long body of case law that the standard for admissibility at this stage in the proceedings is simply that the testimony be relevant and that the testimony be reliable and certainly  the reason behind that one standing tradition is that it's important that the individuals who are determining the proper sentence for the defendant should be afforded as much information as possible and in a situation like this if this court were to apply a confrontation clause then the jury here would not have been privy to use significant information and that would be the specific details of the  defendant's first conviction for murder because as counsel correctly stated the individual who offered the grantor jury testimony was deceased at the time of trial on the people would not have been able to admit this testimony  and certainly when we're looking at giving the jury at this stage the broadest amount of information available and the idea that they would not be allowed to have the information regarding defendants for crime or regarding defendant's previous behavior in the illinois department of corrections simply because the people were unable to find those witnesses is unacceptable and counsel is saying that this wouldn't change the rules evidence but it would it would change the standard from being simply relevant and reliable to being something more than that and it would put a burden on the people to find every single witness involved in every single case that the defendant has ever been convicted of regardless of what it is in this case this is a conviction from basically twenty years ago with the deceased witness and the the jury would be deprived of essential evidence and it would be making a less than informed decision and it's it is correct that the cases which have held that such as  united states versus fields which is a united states court court of appeals for the fifth circuit and other courts which have held that the confrontation clause should not apply at this the second stage of proceedings to rely on williams versus new york and that is a case from the one nine hundred forty s however in the field case the fifth circuit discussed why the williams case is so relevant and why it should still be followed in situations like this and that is because the logic that's drawn by the united states supreme court in williams still holds and that's the distinction between a trial and a sentencing hearing and it talks about how the right to confrontation means the right to confront your accusers and how  sentencing is not pondered as part of the trial for purposes of the confrontation clause and even though williams is a due process case and this is a sixth amendment challenge the logic of william should still control here in this court should find that the content that testimonial hearsay can be admitted at this stage of the proceedings so long as the testimony is relevant and reliable  you for those reasons and for those stated in the people's brief we would ask this court to affirm defendant's conviction and sentence and seven date certain for his execution thr thank you your honors the first point the state made was about it being admitted for the defendants future dangerousness issues six the prison information you know even if you can comb the record and find some proprium references in the argument maybe to the way the evidence should have been used the state has no explanation for the whole thrust of the argument the the end of the rebuttal that i read to you at length where the whole point is it isn't linked to how he's going to interact with the other inmates it's all about how much fun he's going to have in prison and so they might be able to show you where there's a fleeting reference to it but that doesn't mean that the evidence was properly admitted or that it was properly used because the end of that closing argument you just can't can't ignore that you know that they just didn't say that he was going to misbehave because there was wood shop or because he had a movie they said he was going to enjoy himself because he could go to wood shop or go to a movie now the state cited other examples from their arguments and that was appropriate argument and the reason it was appropriate is because they were referring to the witnesses who got on the stand and described what a jerk and one of them knox's person my client was in prison although that argument that she read to you was referring to the witnesses they presented all the the prison guards and everything that didn't have anything to do with the privileges from you know that the department of corrections affords inmates as for the the right to confront witnesses she says that there's a difference between trial and  sentencing the first thing i would point out is that the sixth amendment starts off in all criminal prosecutions sentencing as part of the criminal prosecution and that's one reason why should apply the sixth amendment rights to it i it's it's just part of the prosecution there are a lot of similarities between a capital sentencing hearing and and the q and a trial it isn't different like it was and williams you know when williams justice black said that the judge could sentence a defendant for death without ever saying why you know you can consider anything you want you know now you have a right to jury you have the right to counsel counsel makes an opening statement they make closing statements or instructions to the jury formal unanimous verdict are returned it's completely trial like any more and the right to counsel and interesting point is it is diminished by the fact that counsel can't cross examine people like harrington this testimony or hearsay this would make the right to counsel even more valuable you know she talked about how relevant and reliable is is the only standard and that it should remain  so i think that extending the right to confront witnesses would simply increase the reliability of these proceedings so that the state couldn't present people like carrington who may have all these deals you know she pointed out that they would lose  carrington and i don't know that's not necessarily true though perhaps they could have prevented presented the factual basis from mr banks is guilty plea i don't know if that's out there or not but that would be an admission by mr banks and that would be relevant and reliable and it would be admissible and that would solve that problem you know she can't show that there is no information out there to replace carrington's testimony you know and finally you placing the burden on the people well the people are seeking to kill mr banks and i think it's appropriate that whatever burdens exist should be placed upon them and if it comes down to prosecutors having to work a little harder maybe as hard as they do in texas or in florida compared to the reliability of the sentencing hearing the not i think this court should come down on the side of reliability we should increase reliability by providing the right to confront