but you know there are a lot of issues in this case we're not going to be particularly irritating time wise so there's no other ways you can rest assured you will be irritating many others in order to be consistent we must say i think you morning as i just said i'm kathy flynn from the state appellate defenders office today i was planning on concentrating on the challenges to the palm print in the d n a evidence submitted against mr luna but of course i'm happy to answer questions on the other issues as well latent print identification had has been admissible in illinois since one nine hundred eleven when jennings was decided in assuming your first courts have basically followed suit but the landscape has changed scientists statisticians and other disinterested academic scholars have taken a hard look at print identification have concluded that it cannot accurately and reliably connect a latent print a print from a crime scene generally such as much less a palm print to a particular person it's time to have a first ever fry hearing in that one of the attorneys or the attorneys or total including going to turning who has made basically his career doing the scientific evidence was ineffective for not course is where this type of evidence in toto has been excluded because of the lack of reliability i'm sorry i didn't quite get the testimony over the palm print examiner or fingerprint examiners be excluded because of the on reliability right and that was going to happen in state versus roseman after that evidence was excluded the state promptly dismissed the state law charges they charged federally and it was it however as i was getting back to it your point that your initial made the landscape has changed because because the broader scholarly community not just print have really started to take a look at fingerprints now now these objections were known at the time of trial and they have since really reached a peak in the issuance of a two thousand and nine report by the national research council now this  their conclusions are startling and i just you know wish to preface this by saying that you know this is not a fringe organization we have nationally could build national research councils headed up by retired federal judges they had statisticians they took opinions from the forensic community as well as a cademics and they came to several started startling conclusions a state flat out that print identification known as a c evy i can see from the previous case you're familiar with that has not been rigorously shown to be able to i consistently and accurately demonstrate a connection between evidence and a specific individual what about eyewitness identification i mean i would argue as well in the new jersey  eyewitness an eyewitness case or a psychiatry standing in a case where that happens to be pertinent information or to the fingerprint examiner and in a case where there is a question raised as to the whether there is a match and if there is a match whether the match is significant isn't that a battle for experts to be to wait in front of the try rafat should actually be a battle of experts initially in front of the  trial the trial court the trial judge i mean fry requires some kind of baseline reliability in the form of general acceptance in order to put certain evidence before a jury and there's a particular risk especially with scientific evidence such as fingerprint i mean this is hel stafford i mean juries really believe that the stuff is very reliable and as i said before the the trier of fact in this case judge gone need to have a fry hearing to determine if that was indeed the case   of course the same objections that we've raised to you know fingerprint identification or it could equally applicable to palms and even more so palms are more exotic than fingerprints i mean they're not is often encountered just presently palms are big i mean it's right thing to say that you can get a certain amount of information from you know a decent a decent patch of someone's fingertip it's quite another thing to say that a tiny piece in this case we're talking about something half of a postage stamp right here on the palm that that can't be matched to anybody else's palm in the entire world and that was it's precisely which on us what is testimony was and by the way i should also point out that this particular print was not identified as coming from a hand until after one leader was arrested and the fingerprint examiner also knew about that and they had his prints from ten years before but they didn't have the left part yes that was rather interesting how suddenly we officer whose sole job it was to interview x employees and i mean if i'm sweater claims or news he's inexperienced and certified print examiner claims he's never made an error you know that there's no evidence in the record that that the absence of this left hand palm was ever noticed by anyone you know i think it's entirely possible that someone had reviewed it and just didn't find a match or certainly no evidence no there's no evidence of that but what are the chances that of all the palms and all the pills from all the people they interviewed exactly his would be missing i'm just saying ok to return to the point how the palms differ from fingerprints sir in the photo if you can't control your physical gestures maybe you should leave because i have to look right at you because i'm looking over counsel's shoulder identification there are no manuals about palm print identification issued by professional regulatory advisory organizations no comprehensive textbook they were only able to find one single course on paul you know specifically devoted to partridge identification they conclude that in addition there's just more information about fingerprints i mean the fingerprint of more or less common configurations i heard part of a discussion earlier about that the ridges they they form deltas there's worlds there's different things there's just no information or of very limited information of that nature about  summarize it that we're dealing with a less than complete factual record here and that maybe this is something that's better suited for a post conviction but titian where a lot of these issues not only not only the one that the state raises about why it wasn't done which may or may not be important but also about that point your honor i can't really in a matter imagine a record that is better developed to raise this issue on direct appeal it's sixteen thousand pages with every lab report every validation report deposition of every d n a expert in fact if i came in here on appeal from a p c a i can only imagine what the state would say they would say this is the longest record in history why didn't they raise this is a this issue is evident from the face of the record so this this record i mean we do know several things from this record and it's  adequate for this court to decide whether or not perhaps counsel was ineffective or feeling of hearing now just by way of background i would take discuss a bit of what happened in the testing process here in  millions of copies of the d n a i recommend a higher amount between one and two point five nanograms now the chicken bones which were retrieved from the bottom of the garbage can at the browns restaurant some rival in the you know it's less than the i s p's minimum standard for optimal results and it possibly qualifies as low copy number d n a which is generally defined as a point to an anagram is ok but when d d had less than point five nanograms so those are the two amounts for dealing with because the levels were so low the analysts the seal your doorbell had to go to dr pam fish for special permission to proceed she got permission and she got a result but the samples contained a mixture that's understood here because  least two probably more contributors i say that because the so called minor profile this the small bumps on the electric program were never traced to anybody and they tested ninety two different people including a few resistant field museum or pick up the wrong illegals and make copies of it may make more copies of the contaminating illegals than it does of the ones made by the true contributor and so for example of so it makes it look on the electric fairground like the person has yet it makes it look like it's part of the profile of the person you're trying to process so that's also potential problem the testing here was undoubtedly carried out an amount of d n a falling below the internally validated standards by the lab  below the amount of targeting a recommended by prof the manufacturers a profiler plus and like i said before it also qualifies as possible look up the number d n a this matter would been right for a fry here none has ever been held in the state of illinois on low terms of whether they were properly representing mr luna it seems that this team of defense lawyers who are particularly talented in the scientific realm sort of relished the battle that they had to talk about how little material they had and that the way the polls were hand over there over to the museum they were in and out of storage and you know you have very little material that you're dealing with so it seems like it was trial strategy by some pretty experienced lawyers well i can't see why it would be trial strategy to try to you know get a fry hearing on and i never once that might potentially be excluded i mean and there you go with us discussing this no raises once again he absolutely knew that there was a an amount rested that release was below some of the guidelines that there was either a decision not to seek a fright hearing cases where this court has said based on and by the way the record here really just points in one direction it's low level amounts of d n a we got a mixture there's all these problems that the priest talk about you know where can skew the results make it look like you know  is profile on the electric or gives one a truly is not however how is that any different really from where you have a case of saying that counsel is ineffective for failing to file a motion to suppress i mean you just have to take the record as it is and this yeah in this case taking it as it is they wanted to fry hearing pumper it right they did that one but didn't ask for one and the d n a so it's hard for me to imagine that it is not something that was a trial strategy record there was extensive cross examination on the issue that would be basically raised in the frye hearing that is that you don't have a sufficient sample to be able to rely on the conclusions and so in preparing for that it's it's very difficult for me to take the position that you're arguing which is it just never occurred to them to challenge it rather than maybe we're better off not challenging it's mr bill with just attacking the conclusions based upon the the insufficiency of the sample visa vi the requirements of the different protocols but you know they did they didn't attack it on the basis of of insufficient amounts i mean the cross examination of the d n a experts a trial centered on the actually gives you a reason why that might happen and there's no strategic reason not to pursue that theory would you would you care to address the issue of harmless error in this case even if we fin sure there's no question that the d n a played an integral part of this trial there were probably eight or nine d n a witnesses their testimony occupied the the bulk of the trial wagon was seen in the parking lot of at or near the time the restaurant was closing he knew about the bullet hole in the fryer hood and i'm saying both he and you know there's some indication they were coached in their confessions i mean they both points east west north south they were very very cops like ways to refer to locations of various things in the restaurant and for that reason i would say that in the right of the way the juries give scientific understanding is based upon well understood and generally accepted concepts and is therefore admissible and that has been the law in illinois since one thousand eleven it has been the law across the country since one thousand eleven in just last year this court and people versus mitchell specifically said that until the owners from court says otherwise there's no reason to question that rule of law in the reason why that makes sense in the reason why there was no frye hearing necessary in this case is because fry hearings are only required for scientific testimony which is new or now bill and this jennings recognized in one thousand eleven is thousands of years old but couldn't the newness of the novelty of something  compassing new scientific discoveries or new scientific theories that evolve over time in other words if somebody had once said that the if the earth revolves around the sun they'd been saying it for several hundred years to be some revolve around the earth we've been saying for seven hundred years couldn't somebody else's evidence raise questions that would require a new consideration of something that had been accepted for a long period of time well your honor the friday law as it's been developed in illinois and really across the country is that the existence of dissent within the scientific community doesn't demand a fry hearing there can be dissension there can be disagreements there can even be a minority view which is the basis of the evidence which is being offered but that doesn't require a fry hearing the example that i would point to as we said in our brief is the people  certainly there would be a standard at some point if there was not just a minority view but some line of significance and quantity of opposition to the underlying principles of some science that would require it wouldn't have to be quote a new science there were there there can certainly be a circumstance under which a fright hearing would be required based upon the evolution of scientific knowledge well i guess example i could point to for situations that would be the mccown cases the count cases dealing with the the h g and for a for the horizontal days in a stagnant us and that was a situation where the only three court first ruled it was finally brought to them some twenty years after it had started being used and had been litigated in the lower courts in that you know this is still new to us we haven't ruled upon it yet we haven't seen it we believe that this is questionable after looking at all of the cases across the country seeing how everything was and they remanded for a fry hearing hearing was held in the ultimately the court held that it was generally accepted within the scientific community but the importance there is again there was a significant dissension and it was new to the court that was reviewing it the owners from court was reviewing it for the first time ever in two of the ultimate conclusions which are reached at a particular point and that's in the donaldson case which we cite in our brief the court was very clear to not only to reassert that were a fry state but to reject what had become known as the fry plus reliability sander which would be taking friday and then also looking at the drawbar it seems in the example you offered your honor where it would be looking to see if that if the science that develops become more reliable it would be a question that could develop to a new fry has there been a new fry standard to reach to the fingerprint well again your honor i think from a fry's standpoint once we're talking about friction friction ridge impressions fingerprints those same things latent print examination that's the science which is admissible an expert who is competent and that is able to testify regarding those theories those method allergies and then whatever conclusions they reach including whether nat's the power plant which was found here the partial profit which was found in this case and was matched to one luna whether or not that is an appropriate testimony three offered that subject to cross examination that's a question but the methodology to the question of whether nappy latent prints examination methodology is admissible that's the fry question and that is a matter of law has been decided bond not just in illinois but across the country and i would point out that nowhere in and council can't identify a single published opinion in the country finding fingerprint evidence is not admissible and we cite a legion of cases in our brief demonstrating in rejecting these exam arguments the one decision which counsel referred rose decision and unreported trial court decision from maryland but what she didn't refer to was the case that we cited in our brief markham versus state which is in our court decision a published appellate court decision from maryland after the rose decision specifically rejecting all of those arguments we also cited a series of cases from the federal courts against pain of rose gomorrah from massachusetts all those cases addressed all of these exact arguments including that the national review council reports the rose case in particular specifically identified that the national review council report was never intended to be a basis to preclude any evidence in any particular case it's a question of we should be looking at our forensic standards that are forensic sciences but it's not the same as a question what are you handed in what what impact it has in the scientific community or course may be related but they're not the same you know of course but it's significant that every court that has looked at these issues has rejected it and that's why the decision in this case to deny fry hearing was not of use discretion it was a proper ruling because there's nothing new or natural about the methodology which was being implied by being applied by whether or not perhaps counsel is ineffective and so therefore really should be granted and affright hearing should be ordered the question here is whether or not counsel provided sufficient representation as required by the sixth amendment and under strickland versus washington this court must presume that they provided proper representation that the decisions were made after folk being fully informed and made appropriate strategic choices we don't have to know precisely what their thought process was because we're supposed to presume that it was correct as long as it's informed in this we demonstrate in our brief the issue of the size of the sample and the appropriateness of the testing by the forensic science center was fully litigated prior to trial there were extensive depositions and this precise point is we have shrubbery for the deposition of janine or visa to where the defense expert was being deposed and question was put to her by the state's attorney specifically do you have doctor excuse me carry out the same the other the other doctor's name and so clearly the of the ability and the availability to make these challenges were there they were not raised we do not know why but we have to presume that it was done correctly because what strickland tells us is that if a council makes a decision based after having all the information it must be respected we cannot do such a sunday monday morning quarterbacking with the transferees and say well you could have done you could've done math it's only when they reach that level of truly deficient representation and looking at the record in this case there's no way to reach their conclusion not only were these highly skilled attorneys highly trained attorneys they left no stone unturned everything was  d everything was litigated extensively judge gone wanted to make sure that this trial was clean and as you can tell from the sizes the record and the issues of her raise it was an extraordinarily clean trial and so for there reason that it's not appropriate to be looking at the question of whether or not a fry hearing would have been granted the question is whether or not the counsel was ineffective and as we know it from a sorrow and from view and from like on the cases that we said in our brief when we don't know the reason why an attorney didn't do something an act of omission essentially it's not appropriate to try and speculate and find ineffective assistance based on that it's much more appropriate to wait until a post conviction petition and allow the attorneys and the defendant to make the claims there and that's exactly what here we don't know why the defense attorneys didn't file a motion for frye hearing we can speculate as we do in our brief we speculate as to why in the reason why is because looking at the science looking at the relative fluorescent units it seems to be well above the classic threshold even the defense experts or the defense authorities that they rely on recognize that there's two ways of determining the appropriate amount one is based upon the the input the amplification amount in the other offering in terms of why the attorneys ignored this incredible damaging evidence and the obvious your point out is the record demonstrates that everyone knew that the samples had been degraded on the bones at the time cecilia durrell testif and so it was far more significant to go forward and see what came out and what came out was an hour a few level well above the stochastic threshold and so for that reason there's absolutely no basis and it was certainly a plausible and appropriate decision on go forward with this type of motion and then the only other point i'd like to make is that even if even if somehow there had been a fry hearing which resulted in an exclusion of the d n a evidence it wouldn't have made a difference in the terms of the outcome of the case this case was truly one of overwhelming evidence now that only was at the d n a but it was also the pound present found in the nearly empty garbage can in the browns chicken it was also found in an afghan man ching a model that was sold to what was identified as being the last meal sold because a calf registered had been open and had been closed and reopened to sell one for a piece chicken dinner that was what was found in the garbage can now only was the defense pound his friends he bragged about it bragged about it at the time of the crime within a week within two weeks he was proud of what he did and so it's the evidence all together the pound prints the confession t have a fry hearing on it and that's that's the situation that we have here and in addition mccown also stands for the proposition that you don't just look to the community of forensic examiners for example the law enforcement had use h g in for years and said it was very valid and reliable mccown didn't buy that they really researched the underlying decisions they looked at the quality of litigation on this issue and then look to the views of dissenting scientists and based on based on the lack of a lack of unanimity of decision reliability of printer identification and the illinois supreme court has one that's a quote hollow ritual if all you do is just look at if all you do is just look at the party judicial decisions i mean you and i started the ball rolling and fingerprint why wouldn't they bring it up this record here points to one conclusion that the use of standards amounts of d n a an issue which never came up at trial and that the and the scientific literature establishes all the problems associated with that i mean i don't think based on the state of the record that you can just conclude that for some unknown reason that he decided that they decided not to raise it that would mean that ten the anagrams of d n a was was used to make the sample that's certainly not the case everything here points to low copy number substandard amounts of d n a count on everything to gain nothing to lose by making a motion for fry hearing that's what he should have done