minute this is the court my client has never wavered from his assertion that he is actually innocent of the convictions that resulted in a sentence of life in prison that's the stakes in this case are extremely high but the relief that my client is seeking is minimal this is as the case law puts it merely a motion for forensic testing the bottom line in this case is that modern d n a testing could prove that the semen sample collected from the sexual salt identity is at issue the state is essentially are going to because my client and the complainant knew each other because they were in the same location for the time of the alleged sexual assault therefore identity is peripheral to the trial but the concept of peripheral identity simply does not exist in the law the only supreme court twice over in johnson and in shock i rejected the underpinnings of that argument that simply because a complainant and a defendant knew each other therefore identity wasn't at issue the state of false accusation therefore you wouldn't have a means to test the scientific evidence that was used against you that argument has been rejected by twice over by the on the supreme court and many times over there which applies positions in this case that it's a defense's theory of the case is that the complainant should not be believed because her recitation of what happened is so unbelievable that it couldn't have happened as to whether she had sex or somebody else i think that's an open question so the defense's theory is is not one of misidentification because this is just this house now that there's no dispute that there were that they knew each other so as to whether she had sex with somebody else where she created it whole cl that's an open question i think that's exactly what the d n a testing goes to in this case because this story is contesting that the results of the d n a testing would not be materially relevant but it it absolutely would be materially relevant because the state's case at trial ends entirely on the credibility of the complainant press that corroboration of semen found in the underwear but if the test results come out and show that that semen did not originate from marvin's where i think it has two effects the first is that it knocks out all of the physical evidence in this case there's no confession there's no eyewitnesses there's no physical evidence but even more than that it leaves the credibility of the complain severely and pish means that she lied on a critical factor in this case because she testified she had not had sex with anybody in the prior seventy two hours and she had not had sex while wearing that underwear so in a case where the defense is false accusation the credibility of the complainant is absolutely critical and even the prosecutor at trial acknowledged that his closing argument he said your honor this case boils down to the credibility of the complainant plus even though we don't have  wearing this underwear over the course of more than a day i think the state was using that to shore up that it had been marking where semen because this was the underwear that she was wearing and i think it also goes to the fact that the testimony is that she went to the hospital wearing the same clothing and so therefore if this scientist use this antibody test and found out that it is semen then it had to have been mark wears but if the testing is done it shows it is not marvin wears then it would at a minimum be materially relevant to this case was the d n a testing already done and it was found that there's nothing here except the d n a the complaining witness what would further testing accomplish you know the problem there is that the complainant is female and the preliminary tests show that this is semen so there's an obvious disconnect there from the research that i've done it appears that the evolution and facet of d n a testing is perfectly suited for this sort of case where we're only able to pull out female to nay from where they're actually should be male d n a in that event as an s t r testing that speak directly to these sort of sexual assault cases where apparently the presence of female line of argument in the state's brief that this case should actually just be dismissed entirely on the procedural grounds that as appellate counsel noted that while s t r testing appears to be ideal for this case and in my client's notion he asked for s t r testing and  my briefing i know that's that's a merit list argument because why is terry testing is simply a subset a form of s t r testing but i do want to make a bigger picture point here today is that my client is seeking a d n a testing to determine who deposited that semen sample my client doesn't have a stake in what form of testing it is done so if this court orders d n a testing and it goes to a laboratory and a scientist looks at this evidence and she thinks that she can get male d n a just by using an s t r profiler kit maybe we don't even have to use why s t r them so my client doesn't have a problem with that but i think it would be a sort of perverse result in this case that because rawest here testing appears to be perfect for this case that would also  this this request satisfies both a one and a two of the statute in that he's requesting testing that was not performed at the time of trial and then alternatively were testing was performed that best practice in alternatively isn't there's no technology that would speak to this sort of situation that science has not improved there's no sort of arguments to that effect and even the state before this court really doesn't dispute that it's sort of widely accepted knowledge at this point that i did it technology has advanced the point where it could get results of this case or the remainder of my time idea what for us to do any of these and i don't know how if you properly request of last year to ask me if we would object how we would respond to it i can't i can't say that i'm because they didn't make requests and no record was developed for the trial court and these or do you agree that in any case where the defendant pleads not guilty then identity is always an issue no i don't on and i believe that an issue in this case i think  identity be a central issue in a case where the victim's knows of the alleged perpetrator the in order to make up to me an issue the defendant would have to take the stand basically to testified and do it at  that's where that's the guy that's the guy that's the guy and when david the they did retesting on the d n a and they found the actual perpetrator he actually did look like the perpetrator here here your victim very well could be certain that's didn't do it his his lawyer said my client didn't do it it didn't happen the way she said it happened he said i was mocking i don't know what happened he didn't testify so good are you saying he has to testify to the point i'm saying that the way i mean it's a tough call  exactly what is central to the case but my review of the record the trial record was that their argument was it was all this evidence and it didn't prove that she was raped period there was no rape by anyone and th but isn't it true that it is an issue and i didn't do anything i didn't catch and that make it a little bit different it worked but the only argument really was that there was no rape so this kind of hard to say exactly where they were going with and it's position is of the whether or not someone else there he did it or well that makes it a hard call on that particular issue because the it's just a focus on the foul record and the trial record suggests that doesn't suggest to me and it's pretty clear th this house i called the scientists at orchard cellmark to run this case buyer and she told me for about a thousand dollars you can do d n a testing of course the cost of incarcerating my client for life is many hundreds hundreds of thousands of dollars but more importantly it's a loss of my client freedom the state is intent on having this testing request dismissed on procedural grounds in fact my present counsel today appears to be admitting that if y s t r testing is asked for they gone back in front of this judge and said you know just to cross or t s and dot arise we have this new test why yes here are we to give a chance to talk to you about this we get a chance to talk about this yet it's a new thing the report shows that p c r testing when i saw it and what happened there is that after my client put in another quest to make it more specific the state's attorney on appeal got wind of this and then used it against my client  appeal a couple years ago the briefing before this court was pretty much identical the stakeout wind of it and then actually asked this court to dismiss the case without addressing the merits pretty much making the same argument my present counsels making now and i think ultimately what the state is arguing here is really by letting an important principle of the forensic testing statute and that is that this is a rare statute where the only general assembly has passed a law that it's sort of reason for existence  exonerated defendants and it's been amended twice over in the last ten years to actually make it easier to obtain d n a testing so that the states to ask this court to construe the statute so narrowly as to make it difficult to he's back again he's asking for why it's her testing and i think my client has a really legitimate concern in this case that this judge has as looked at this d n a testing at best twice over now and as it really just the merits of the technology that it and and and and the advancement in technology and hasn't  that's it i don't know i'm not sure if it's fair to her because because i think we can agree that that this this record that the state's attorney is saying should have been developed in front of the trial judge h been developed with regard to this new form of testing i'm not saying i'm not saying a judgment a way in terms of what value it has but i think what they're saying is that the trial which you know the your brief sets out  to be tested then my client doesn't have a problem with sending it back to the same judge and in terms of the record not being developed in the way it is before this court i think there's a principle of law that recurs in these cases i think speaks directly to this case and that is that the trial court is not in a better position to review the merits of these motions and i think in this case actually i think this court is in a better position because the the record is full in terms of the transcript of the issue has been fully briefed there's not testimony the needs to be taken in this case and so up i think this case is ripe for an order for d n a testing and i wouldn't frankly i wouldn't trust based on the procedural posture this case i wouldn't trust it to simply just be dismissed entirely and then hope that my client who was incarcerated who was indigent indigent years was pro se to leave it to him to have to refile something and then hope that the state doesn't argue rescued a cut of the second time the third time around and justice house you noted that there's a principle in the law that the state's interest in a criminal prosecution is not that a show when a case but that's just a shall be done i think this is a case where the state of illinois should be seeking justice to ensure that one of its citizens is not wrongfully incarcerated for the remainder of his life thank you piers this case will be