as a result of the first two appeals in this case this court reversed mr mitchell's conviction and we manage for a new trial based on the fact that his statement been physically coerced by area to police detectives unfortunately the retrial in this matter was fraught with forensic fallacies and foundational failings therefore i wish to address today and focus on the fingerprint evidence and the forensic d n a the first issue i'd like to address is issue number one in our brief th tell the jury this did it tell the jury that the defendant fired the weapon no not in this case that he would tell the jury that it was present he was present and nothing other than his own testimony where he said that he had been there before because his friend lived at that location so he admitted being there in the house you're there in maybe a matter of ordinary events that might lead you to leave fingerprints in the location where the fingerprints are discovered but there was no testimony or evidence shown by mr  the does that make the evidence less significant or does that somehow impact the qualifications of the expert that actually does and i don't think it impacts that at all because this is a question of admissibility foundational problems that a limit cross examination we're also talking about the impact a fingerprint evidence had on the entire case on proving this individual guilty beyond a reasonable doubt and once we had his testimony say yes i was in that arm and yes i may have touched things there i mean he maybe he didn't even have to say that because he was in the park and i don't think it's contested that the barn itself was sort of like a can't think of a better well it's which everyone agrees cause the death of the young girl right right that the fingerprint was found in another box and there you go that's correct and that had really nothing to do with the charts that's correct but the prosecution in closing argument i did argue to the jury that because the print was found on the glass plate that was sitting in the in operable car in which the the weapon was found that he must have been connected to the crime so it isn't that what what lawyers do they take a little bit of evidence and then they argue it to the jury in their support and that's what lawyers do so i'm not sure your point is that the lawyer should never argue that i think that you have it it's i mean i think the lawyers were fair and in taking that evidence and arguing it the question is whether i think whether the fingerprint evidence really was a instrumental in the jury's verdict of guilty as you contend it did and why why do you think it really i think it is because the prosecution clearly used it they introduced this evidence but it's not a matter of uses it it's a matter of whether that evidence should have come in in the first place ok let's let's deal with that and that's my point here obviously the prosecution could argue what it wants with respect to the evidence but i think it it should have been admitted i think it should not have been admitted because there was no information given by a seam or very similar to examiner cuatro in safford are you sure about that because i thought she testified that there were five points of comparison that she found and she said that they were easily found and she tried to it's a matter of cross examination if she did it and then the jury can see that she didn't and the jury can disregard her testimony which goes back to the original question whether her testimony was that credible to begin with  so what is your argument as you know my argument that that this is not harmless error because the well in addition to the other arguments i will make this was cumulative error but clearly here the prosecution used this and as this court said in safford off forensic evidence fingerprint evidence is very subjective in nature has a very persuasive effect upon a jury but you will concede that she did say that there were five points of comparison and to the extent that she had a chart she was available to be cross examined on those five point and there may have been as many as thirteen but she didn't identify thirteen sattar i think and i'm sure you read it well and maybe more than once i can't get reason b p rat points of comparison is good enough and don't we have five points here but here we have thirteen point your honor and this is the point is though that the chart that was used in that state does not mention this in their brief but this is critical to this particular case during her regular testimony about her opinion her opinion and her original examination took place all the way back in august of one nine hundred ninety nine this trial let me interrupt you for one yes the fi as established where does that argument lead us does it lead us to a fry hearing which i think what where where just orton's leading or does that lead us to question whether she should have been admitted as an expert at all night and i understand that there was an objection made there were you don't raise that as an issue before us whether or not she was qualified to to testify as an expert given testify given that she had lost connection for years to the very specialized field of fingerprint analysis why should why should she have been allowed to testify to this in this case  something like trying to set a minimum qualification for experts to come before a jury to come as trier of fact and to come as a very persuasive witnesses that they should have a minimum qualification such with the a c v i didn't even know what that was even though i was involved in safford i don't recall that ever coming up before but if that's the minimum standard that's what the f b i uses and that's what is critical for every well trial regarding her original and hloise she says it's five point she's then subject to cross examination and she used that defense counsel asked that demonstrate that there are no five points and that the f motion or move to strike her testimony and i'm not sure any of that happened in the future i know what i'm saying is we've heard analysis of the testimony at the time that she did the fingerprint analysis nine hundred ninety nine she gave no testimony regarding her analysis  methodology or any number of points that's why this makes it exactly like examiner cutrone safford this that the demonstration that she gave after she gave her testimony was from a court chart made in august of two thousand and eight nine years after she analyzed these fingerprints and this was only for demonstrative purposes and then she said when i looked at this particular picture versus this in august of two thousand and eight i found thirteen points and i have marked five of them for you that is not to determine whether an individual wasn't under the influence with driving under the influence fingerprinted and i think that sex pointed out he she pointed out the expert that  they've been around for a hundred years and everybody's been using and i wasn't sure what your argument really here is as to pry are you saying that this particular methodology that she did testify to is subject to  or fingerprints in general because they've never been really tested they simply been accepted over the long time that they use as legitimate scientific evidence has never been illinois at this point that's why i'm making the issue here you know so you want to ask you this it's not the question of fingerprints it's the question of the method correct then is used to determine the fingerprint that's correct exactly and that's  time so that you can separate fingerprint leave nobody talks about fingerprints as if fingerprints are identification tool without acknowledging that the methodology must be behind that fingerprint analysis and so they're that they're the same thing and i don't understand why you think that you can challenge unless you're talking about challenging the very idea of using fingerprint no i am challenging the methodology used by appear only let their experts rely on any methodology that the learned dr and apply that whether they identify or not apply that methodology giving their testimony is that what you're saying now you're  methodology here was clearly flawed work for the illinois state police she did but that does not make her a methodology infallible and clearly here she did not follow the subject method she admitted the easy even method has been around since one nine hundred fifty nine  acceptance there's never been a fry hearing in illinois if you're saying you don't have general acceptance to a methodology that's never been disclosed that's what your argument is that she doesn't have a methodology and therefore no she has a qualified took her methodology she said i i you have to you can probably use the bang to find class i mean those are those are are unavoidable steps in the analysis of fingerprints i think of course you know we have to observe the fingerprints and look at them in detail the question is here  cases from other jurisdictions or in literature clearly people need two cases we found in fried receptions were state versus rose where the court found that the this type of methodology did not meet the fry standard and found that there were the numerous that right and we recognize this effort that there's a very subjective owner precisely to figure it out and so this is the reason why a fry hearing is required here because this meets all sanders and we're looking at this particular case now challenging fingerprints in general but the methodology in this case that the state's only argument here is that they claim a fry hearing is unnecessary because where you have visual observations that are unconnected with the mechanical stuff ah they say to put the impeachment in a different manner but the very points that you're seeking to raise they've already been addressed in the transcript that was read to the jury why is it that  the because that is the new defense counsel some of these issues were not brought out in the same manner in the first trial and so the same managers at that point some of the points and some of the same manner but the fact that points were never raped if the first time in his  examination i mean that he felt that the defense attorney said that this same emphasis was not used on the points in the first trial and cells like sounds like fertile ground for argument or additional cross examination and that's what you're asking for you're asking for additional cross examination and really you're saying we want to put these questions out before the jury because you can't get an answer to these questions you just want to help them out before the jury sounds to me like that is closing argument sort of material and not something that you can introduced by way of impeachment put your honor is there still principle of what's good for direct examination that was introduced it was introduced from the earlier trial it was to that extent both of you have to rely on what occurred in the earlier trial and the question is whether what you're trying to what your motion sought of all the errors in this case i think that it just one could have had an impact because that was the star witness in the case and if he claimed he was looking at his mother jogging for three hundred feet to the home as a poised to looking at who was the shooter it could have had a difference in connection with the other issues in the case and it wasn't brought out the other trial that's right that's right that same big clear it wasn't brought out the other track that's correct that's correct so i'd like to move on into the d n a issue if i might the first issue here had to do with the lack of adequate foundation where the mr johnson who is if you had a expert only tested for the most high of the eight available lowside that were present and so i am arguing that i think this is even stronger case than that safir because it safford of course you that's a fingerprint case where you don't have a number of points of comparison and yet here we do have a standard which is thirteen lowside from the f b i on let's let's let's let's try to at least come to an understanding what we're talking about sure we're talking about thirteen eighteen the number or an identification that's correct wasn't there and identification in this case by that he had made you know there was an exclusion  and so why are you pointing at thirteen as some sort of critical number in this case when that really that number didn't make any difference but does make a difference because every low side that is not tested it is a possibility of excluding the defendant that's why this is so critical in a t n a case as opposed to a fingerprint case and so here there are a testable lowside so in other words if you would have tested number five six seven or eight any of those an expert testified that expert for the state to test only a certain amount of low science say well see the defendant is not excluded but if they would have continued to test the additional lowside he could have been excluded or he could have been identified who we don't know he could have been begging the question is whether that evidence should have been introduced in the manner in which it was ejected correct and whether or not there's a reason to have prohibited it and what's your reason for having prohibited my reason for prohibiting it is this is it's not an adequate foundation abhi because he had to test to get a gold goes to the rule and you're advocating is that before any d n a evidence is introduced all thirteen low roll right or in this case eight because five have been decomposed so he only could have tested eight but otherwise what it allows the prosecution to do is they could just go and test one low side and tell the jury see the defendant is not excluded so he could beat perpetrator and the stand response argument is that he's not excluded but neither mind he there are all of you who either is that everyone else in the world other than the perpetrator but the question is is that it miscible for purposes  exclude certain words in the course of the trial we're not going to say you can't use that word in this word that's what this was the argument made below that this was inadmissible and so that's what i've raised on appeal and but but the but the competent to testify he clearly should have testified here he was not and you are your your argument is that because they use the computer program what not not because you use a computer program because he was unable to explain what the numbers met and of course the only supreme court miller said that once you have d n a evidence you have to have statistical analysis to make sense to the jury because otherwise it skews it greatly prejudicially in favor of the prosecution and the case of buyback versus just because you have an expert in one area doesn't mean he's necessarily expert in another and here he was asked very simply by the defense attorney could you tell us what the pool is of people and you tell us how many people how many blacks in this area would match at four lowside and he could not compute anything and he could not give any answer what what what what that is that if you say something like one it's that in it he said one in seventy one blacks cannot be excluded from having contributed to the nature of the d n a profile if you think that was sort of over the head of the jury i think the prosecution use it very effectively and that's why he had his nap what they should do they should have everything very effectively just like defense counsel should be very effective on the other side and he should be when he has an expert who he can actually cross examine which mr johnson was not competent to do and that's why his testimony should have been stricken the prosecution did say in closing argument that mr mitchell would be on a side of only ten lie when they are not explained and a defense has the right to cross examine and actually for isn't that almost the generally understood knowledge that people can manipulate statistics in any way that most people accept that well we don't accept that was incapable of doing that and i think this brings up the the recent case of people first harvey right which i understand was just reheard but the fact is it has to do with the arizona study that the defense attempted to cross examine mr johnson on he  totally incapable of talking about it and this is critical to understanding these figures because obviously the f b i said using the product roll at nine lowside there would be a one in one hundred thirteen billion chance of two people matching and of course we look at the arizona and the more recent illinois and maryland studies we see that there were numerous pairs of people who madison was a vet brought out to the jury and what was he asked about that very well he wasn't able to answer that now but he wasn't eight brought out wasn't brought up is no explanation and what i'm saying this is critical because it leads into what we call the prosecutor's fallacy which is a logical fallacy and what happens and that just like here they allege that the defendant would be in a very small proportion of the population of that would match this though he was not deliberately matched but they said he could not exclude it but what they do not go into is the number of people that could match and this was a case of four of those i could have been hundreds of thousands of people who could have matched and so they let the jury believe that mr mitchell was probably the one that was guilty when in fact when you see all the people that could have matched it was very unlikely that he would be guilty and i'll believe that he was innocent i mean just  it in his testimony that he was in every bar in the car but the context you know you can't say that there are one hundred thousand other meet a million other or million other people that could have left that very a when that the and it was found in the park where the vice lords but none of this is what the prosecution argued to the jury the defense has a right to cross examine on those figures because we don't know how many people were in the bar but that doesn't really matter the figures that were made is what a random population how would mr mitchell match up with this particular d n a for your sex makes that if it does make a difference but this is the most persuasive evidence to a jury and the fact that this this was a mixed sample of d n a with three different at least three different individuals on it mr becker we've taken a lot of your time we're going to give you some time for above thank you very much  that's been used for over one hundred years in examining fingerprints right and is it not the standard technique for a fingerprint analysis according to the f b i as far as i know yes i would point out that that wasn't brought out in the trial court there was a question about it that was what book it came from what program it came from six where she explained that she had training from the ice to play she explained her qualifications and she explained the procedure used and that it's the same the standard practice to use th  all the questions and i think it's important to note as justice garcia pointed out earlier that it's important to distinguish between a fight challenge and a challenge to a particular expert friday deals with the the scientific methodology and that is not as defined interested in it to perceive me defense counsel just admitted here that is not what was ever challenged in this case he says he's always challenge the specific the specific expert and that's what he's doing here and that that the crucible for testing a particular expert she herself testified that there was a more experienced fingerprint expert that reviewed her work and so the question becomes why did the to call her as the witness as opposed to the individual that was more experienced and presumably remained in the fingerprint expert field when the retrial occurred in two thousand and eight because she had left that field eight years earlier why should why should the courts allow the representatives of the people of the state of illinois to pick the lowest qualified expert who he wonder whether she could now qualify given her departure from the field you know why should we allow you know past acts past deeds or past qualifications serve to qualify that expert as opposed to current qualifications in the first instance i would disagree that she's not qualified she did the comparison and she was qualified to do that the comparison she's been done by anyone at any time she could have been redone in two thousand and eight it could've been done redone in two thousand seven it is a d n a yes evidence that can decompose and be an uphill battle for future testing fingerprint evidence exist and it's going to continue to exist and it's available for anyone to  qualified as a fingerprint expert and she and she made a comparison in accordance with reliable scientific methodology or she didn't and i think it's very clear that she did it and i think that's a good way to point out that this case is markedly different than safford this is not a case both when you compare the testimony of the two experts from such from safford and here and then also when you look at the at the the evidence as a whole which would go to the homeless argument and then this was a case where there was ever rounding out the dents in addition to the fingerprint a what role did they have fingerprints really circumstantial evidence i mean his fingerprints usually are evidence you have direct evidence of virtually the same thing direct evidence that he was that he was the shooter and that direct evidence that he was in the barn which is all the fingerprint tends to support the state's theory attempts to make any issue of of in contrast more or less probable that isn't there a sort of a standard rule in prosecution practice that placing the defendant in the location is all all you the ability to leave the numbers you with before the jury seems to me that that should be a basic sort record he did explain that he explained the frequency generated in this case the rarity of that one in seventy one  blacks one in seventy one right and one in eighty two male histrionics what is going to stand next could not be excluded but the questions i think i'd like to point out that the questions that councils relying on and that trial counsel polls regarding regarding calculating the frequency how many times people would match up for those eye is a completely different question every time he was answered a question about the statistics in this case he answered it so there's it's really not true that there was he was unable to explain the statistics in this case he he was there were some irrelevant questions thrown at him regarding things like arizona study and you know calculating things with a calculator that had absolutely nothing to do with the generation of the rarity of this profile or the it's not it's not a confuse the jury is it with no it's rather than evidence it's a mixture that was recovered from the crowd and it's i think it's also to take important to when you're looking at the relevance not only to take into account the fact that he cannot be excluded from it but also the fact that the so you take that all together it's certainly relevant you know defendant is basically suggesting that it cannot be excluded could never possibly be relevant in a d n a case and that's simply not true defendant as i was so mistakenly suggesting out what is clear from this record is this was evidence d n a testing that defendant wanted done this was done at the behest of the defense and i'm retrial and so it wasn't introduced at first it was not it was not tested until after the first trial it was not tested until two thousand and seven and that was it's very clear if this court looks to the pretrial dates that the days preceding the second trial that it would they were continually being taken because of this testing that the defense wanted and so well you know i just want to reach with a rule says it says when a hearsay statement has been admitted as evidence the credibility of the cleric may be a tag and if it peg may be supported by any no i do not because the because the cross examination of demetrius jones specifically included every single question the defense counsel wanted in the second trial it was already there all of the previous  to him in the first he then the defense counsel of the second trial may have wanted to go further with it may have asked those questions differently and the trial court said that you don't get to do that it's and and the quote trial court did ask defense counsel  your research or did your research turn up a single instance where a court has ever allowed additional questions to be put to a witness who sent president court now you're i mean it just doesn't seem like it's feasible and you know our our court systems to some extent have to be practical and the practicality is that you can't do it it would have been unfeasible and beyond that it would have now these questions would have could have all these questions were covered in the first trial when i point out my brief was that none of these questions even served to impeach to me was john's his testimony regarding him seeing the shooter none of that was pulling the question by these previous statements they involve time in permits and a little bit more detail that he gave when he when he identified defendant in a lineup so none of these issues the defense counsel wanted to bring out again would have done anything to impeach is solid identification of the of the shooter and in that regard i would very briefly address the cumulative error argument there is simply overwhelming evidence here if if the jury had not received not seen the scientific evidence or marie coffey supported by mary lou it's supported by the identification of the rifle and the bullet that killed at peak found next to her body in conclusion your honour's the defendant was in total to a fair trial not a perfect denied pushing his mother into the alley which of course would affect his sight of the shooter but what he actually gave statement to the police was he gave that affirmative statement that he had fact pushed his mother that makes a huge difference to a jury where you just get up  still get to where you want to go that is reverse i think we subtract four and we subtract three can we subtract one can we say that the scientific evidence was properly admitted that was the state's star witness contrary to what the prosecutor i hear are saying the evidence here is not overwhelming if you take away the fingerprint evidence by which they attempt to link mr mitchell to the gun in the inoperable car and clearly try the a evidence to link him to the shooter as you recall he did not test positive for a gunshot residue test so that's why they so in for size the the gloves even though there was a mixture of d n a so you take those two away and all you have is the testimony of mr johnson whatsoever since he not only got one deal from the state but then went back to work out they made another deal to make sure that he could even have less time and all this was to to sexually by his tell all that was pointed out before the jury it was it was that's correct and then you have prosecution had the right to put on his testimony though that was awkward there was a lot of talk about that the clearly if the prosecution can do it so can the facts they should have been allowed to put on that evidence impeaching him could i does that work again i would assume just like the prosecutor brought in a law clerk to pretend to be just read a transcript but you don't provide a transcript that could be read regarding any answers to those additional questions that you sought to put to that missing woman so i assume they would have to  information before the jury let's say we agree with you yes and we send it down for another trial how would you do it in a practical way i mean practically speaking how would you do that you would either have a witness just like the prosecution  pretend he was at the witness part right ok right you ask questions what happens next right and then someone would give the answers not to get an answer you have someone give the answer that he gave that type that that did defense counsel have the right to introduce any  yes ok and you're saying that that rule just scored just should be expanded so that in the second trial when that witness is not available i'm not even sure that that rule of address time it's ever happened i predict i believe the smith case in my brief which says exactly you have a right to do this if a person is unavailable the defense has every right the world put in any evidence that they can that impeaches his testimony that's always