doubt in general i tend to believe that the terms are self defining but it's also quite clear to its power that under victory against nebraska a state court may say something about the concept of reasonable doubt  or you know about only is whether or not it is harmless error if you're doing if you're going to justify what he did the ok well as a technical matter i probably wouldn't use the vocabulary of harmless error because we know from sullivan and victor and the like that if you had a federal constitutional error in this area it would sense that in victory again no not as you know since specifically an instruction approved i'm approved no but there are jurisdictions that have plenty of approved definitions for longer explanations discuss harmless errors opposed to this is a good idea i'm obviously illinois position is that this is not a good idea because especially because we've taken these kinds of definitions off the table  there for being very pragmatic in trying to define reasonable doubt is of course that it is up this litigation whereas we know that this kind of a safe harbor in federal constitutional law is that if you don't say anything to eliminate the concept or explain or define it here as a matter of federal law and the constitutional question that the state appellate court needed to look at and did look at albeit in some places somewhat in aren't fully was whether the fees for deer remarks so record gap is that it can't be construed against the state petitioner had an opportunity to object in state court state law would have given him a basis for an objection he could have considered submitting affidavits in either post trial motion or in a post conviction claim in a post conviction petition he definitely could have submitted affidavits from someone describing these gestures and instead he decided to proceed on a silent record on that point in court and it's true that the appellate court decided to overlook his state law forfeiture of these issues by failing to object but that doesn't excuse him of responsibility for failing to develop the facts so to the extent that that matters to his heart he must lose and this is no different than one of the stun belt claims this court is sometimes encountered where what you expect in part is for the petitioner to submit affidavits from someone saying i saw a ball and we're aware of something that might have been a stun definition and it is improper as a matter of illinois law for the quarter counsel to attempt it and that's why if you're looking at the appendix bound with our brief at page a forty five and i'm at paragraph e consider whether these comments require reversal so the discussion of harmless error and prejudice and all those kinds of things in the state court's decision doesn't really take away from the force of its point on the sort of victor theory that question of reasonable likelihood of the jurors misunderstanding that the victor theory the actual federal constitutional violation as opposed to the state law violation was briefed in the case as i understand it yes it was and and the state appellate court's decision kind of models to never go out there so i disagree judge hamilton with the idea that it could reasonably be construed as inviting the jury to convict defendant based on less than the reasonable doubt standard then it goes on to say and moreover the subsequent much security possible error so the inquiry that they're applying to the remarks themselves i victor type three that's the best spin you can put on agreed from your standpoint but the the petitioner the door no in his brief clearly set out a federal due process claim as well as these other federal or state law claims for errors and i just don't see the state appellate court ever in gauging the comment that you're relying on it comes both  before immediately after and immediately before discussions of illinois case law dealing with what we might call stray remarks of judges not jury instructions on the issue of reasonable doubt so  i i frankly have trouble seeing how this is not contrary to the supreme court law because they simply looked at the law and the wrong line of cases doesn't mean the state that but if you if you read if if you read that sentence in paragraph fifty four as we really mean victor although we're not going to cite it the next sentence is flatly contrary there and to federal due process analysis right because we're because we're the school the court is considering cures of errors or harmless error which under the federal standard is not permitted in this so that's why i have maybe they're taking early against packer to its limits but i think we're still there but again that the sort of assumption that you know the review applies and that it went on it is another perfectly permissible way to come out in this case it should probably close by asking you to reverse the district court's decision thank you thank you quite looking not at the quality of the event presented by the state against the defendant but the amount of evidence presented and and doing what he preferred to accept as a  relate these remarks in the opening instructions at the top of our dear didn't really he wasn't and never did tempt to define reasonable doubt he was explaining the civil burden preponderance and what it means in terms of the quantum of evidence etc and then saying this is not that so he says he's ruling out that that's how i interpret these remarks and i think our a reasonable jury would that a judge who tries to differentiate between the civil and criminal standards is violating the due process clause in every instance not necessarily i know  concurrence well the clutch what attempts to define reasonable doubt as the supreme court found violated the due process cla be difficult or that i believe it is but shouldn't be but i've got to tell you in just about every jury selection i ever did as a trial judge i'd ask about prior jury experience in a soon as i got a any answer about somebody who'd been on a civil jury if i'm picking a criminal jury that became my teachable moment to explore how the judge had instructed them in that and then try to use that as an opportunity to point out this is a much higher standard cetera i hope i didn't use scales given the debate that we have here but but it's a it's a very common practice in trial courts to try to make sure jurors understand that there is a difference and so i'm looking for case law that would say you know here's here's an attempt that went off the rails to the extent specifically present the issue but suggesting that it's a it is how it's presented in this case the judge did not distinguish that the proof beyond is an issue of we are here what i do want to as i see my time is finding down i do want to make clear is that it's the that the jurors in his case were reasonably likely it is reasonably likely that they understood in this case based on what the drugs that to them at the outset to look at the evidence as a further two quick points in rebuttal first i would note that when it comes to the idea of discussing weighing of evidence and probabilities and things like that you victor the supreme court did specifically uphold a definition it didn't endorse it put it  p held on the due process clause in explanation of reasonable doubt in terms of the whole strong probabilities of the case i would also note that if you're looking at this issue did novo if you decide the case