## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Watson , 2012 IL App (2d) 091328

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. TROY S. WATS ON, De fenda nt-Appellant.

District & N o. Second District Docke t No. 2-09-1328

Filed J anuar y 25, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s conviction for residential burg lary was reve rsed and the

cause was rema

nded for a new trial with new counsel wher e defe ndant’s trial counsel was ineffe ctive in failing to cross-e x amine the State’s DNA expert or prese nt evidenc e that the partial profile should be considere d a “nonmatch,” failing to prese nt expert testimony that the statistical calc ulations relied on by the State wer e flawe d, and failing to understand the DNA ev i d en ce or ensure that it was proper ly explained to the jury
, and defe ndant’s posttrial counsel was ineffe ctive in only filing a notice of appe al without filing a ny postsentencingmotions.

Dec ision Under Review Appea l f rom the Circuit Court of Winnebag o County
, No. 08-CF- 1692; the Hon. Joseph G. McGra w, J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l Thomas A. L ilien and L inda A. J ohnson, b o t h o f State Appellate Def ender ’s Off

ice, of Elg in, for appe llant.

J oseph P. Br

uscato, State’s Attorney
, of Rockford (Stephen E. Norris and Timothy J

. Ting
, both of State’s Attorney s Appellate Prosecutor’ s Offic e, of counse l), for the People.

Panel PRES I DI NG J USTI C E J ORGENSEN delivere d the judgme nt of the court, with opinion.
J ustice B urke c oncurr ed in the judg ment and opinion.
J ustice B irkett dissented, with opinion.

OP INION

¶ 1 Following a jury trial, defe ndant, Troy S. Watson, was convicted of residential bur g lary (720 I L CS 5/19-3(a) (West 2006)). On Dec ember 3, 2009, the trial court denied defe ndant’s
pro se posttrial motion alleg ing, in part, ineffe ctive assistance of counsel based on counsel’s fail u re to challeng e the alleg edly marg inal statistical signific ance of admitted deoxy ribonucleic acid (DNA ) evidenc e. On Dec ember 10, 2009, the court sentenc ed defe ndant to 30 y ear s’ imprisonment. Defe ndant did not file a postsentenc ing motion. ¶ 2 On appea l, defe ndant argues that both trial and posttrial co u n s el provided inef fec tive assistance

. Specifica lly
, defe ndant asser ts that, wher e the only evidenc e the State produce d
ag ainst him constituted a partial DNA “match,” trial counsel provided ineffe ctive assistance in that she did not: (1) cross-e x amine the St at e’s DNA expert or prese nt any evidenc e reg arding the fac t that the partial profile should be considere d a “nonmatch” and was not, in fac t, unique; (2) prese nt any expert testimony to establish that the statistical calc ulations relied upon by

the S tate and its expert wer e flawed; and (3) unde rstand the DNA evidenc e

or ensure that it was proper ly explained to the jury

. As to posttrial counsel, defe ndant asser ts that counsel provided ineffe ctive assistance wher e he was appointed for the purpose of filing postsentencing motions but, instead, filed only a notice of appea l. For the following rea sons,

we conclude that defe ndant was denied the eff ective assistance of trial counsel. We reve rse his conviction and reman d fo r a n ew trial with new counsel. We do not rea ch the issue of whether posttrial counsel wa s ineffe ctive.

¶ 3 I . BA CKGROUND ¶ 4 On August 17, 2007
, Anna Be rman was house-sitting for her boy friend’ s uncle, Cra ig Corcora n. When she arr ived at Corcora n’s residenc e, th e back door was ajar and, inside,

-2-items wer e disturb ed an d various belong ings wer e missing. The items stolen from the

residenc e included a laptop computer, a video g ame sy stem, an d a flatscr een television. Be rman tele phoned the police

. ¶ 5 The police investigation reve aled that a patio chair was pulled under a bathroom window; the bathroom storm window was remove d and broken, the interior window was pried open, and it appea

red that the scre ws on the window lock wer e unscre wed to g ain entry to the home throug h the bathroom. No usable fing erpr ints wer e rec overe d from the window, bathroom,

or re mainder of

the house. A te nnis shoe or other f ootwear imprint was found on the toilet
seat underne ath the entry window; a lif t o f t h e print was not tied to defe ndant. Police collecte d small hairs found on the broken g lass of the window and a scre wdriver (which did
not belong to Corcora

n) found in the master bedroom and sent them to be tested by the State Police crime la

b for possible DNAevidenc e. ¶ 6 Ap p ro x i m at el y 16 months later, on Dec ember 31, 2008, a bucca l swab was u s ed t o collect de fenda

nt’s DNA. ¶ 7 Blake Aper
, a fore nsic scientist employ ed by the State Police, testified that he per formed DNA a naly ses compar ing defe ndant’s DNA with the DNA collected f rom the scr ewdr iver and hairs rec overe d from the crime scene

. In approximately 36 pag es of trial transcr ipt, Aper was admitt ed as an ex pert in DNA analy sis, he explained ge nera lly what DNA is and how the analy sis works, and he explained that the laboratory ty pes 13 loci on the DNA to cre ate

a profile. The laboratory pref ers to have a minimum of three nanog rams of DNA to profile. 1 Fur ther, Ape r explained that, while bucca l sw abs taken from individuals ty pically result in full 13-loci DNA profiles, it is not expected that full profiles will be rec overe d from samples left at crime scene s. DNA information from such a sample can be lost due to environmenta l fac tors, if someone was wea ring g loves when handling the item from which the sample was

rec overe d, if the source of the sample is not a “g ood DNA shedder ,” if that individual did not handle the item for a long period or did not handle it roug hly
, or if the item does not have a g ood surfa ce onto whic h to transfe r DNA

. ¶ 8 Aper testified specific ally reg arding t h e s am p l es co l lected from the crime scene as compar ed to defe ndant’s DNA. First, as t o the scre wdriver
, Aper explained that the swab

rec overe d only 1.1 nanog rams of DNA. Fr om that low-leve l sample, Aper was able to obtain information from only 3 loci, as opposed to the 13 loci normally viewed. Aper conclude d that the sample contained a mix ture of more than one person’ s DNA. He compar ed defe ndant’s DNA to the thre e loci and e x cluded de fenda nt as havingcontributed to the sample. ¶ 9 Next, as to the hairs reco v er ed fr o m t h e wi n d o w, Ap er t es tified that the sample

I n I ll ino is
, DNA ana lysts rou ti nel y ana lyze 13 loc i. See Peop le v. Bark er , 403 I ll

. App. 3d 1 515, 527 (2 010) (di scu ssi ng t he pro ces s of DNA ana lysis andnot ing th at DNA ana lyst per for m ed
te st s to cr eat e a pro fi le acr oss “13 cor e loc i” ); see al so Peop le v. W il li ams , 238 I ll

. 2d 1 25, 149 (20 10) (a nal yst test ed “th e 13 loc i” ); In re Jes si ca M. , 399 I ll . App. 3d 730, 745-48 (20 10) (no ti ng tha t the Fede ra l Bure au of I nvest igati on (FBI ) m ai nta ins a DNA ind ex syste m wit h inp ut fr om st at e dat aba ses , incl udi ng I ll ino is , an d t hat th er e t he F BIana lyzes 13 l oci to compare unknown p rof il es obt ai nedfr om

cr ime sce nes wit h known pr ofi le s i n t he d at aba se)

.
-3-constituted 21⁄2 nanog rams of DNA. Aga in, Aper was not able to g et a full profile from all

13 loci; rathe r, the sample allowed him to obtain information from only 7 of the 13 loci. Aper
compar ed defe ndant’s DNA st an dard to the seven- loci DNA profile rec overe d from the window. He c oncluded that he “wa s not a ble to e x clude [defendant] as contributingto that stain.” ¶ 10 To explain his proce ss, Aper prepa red, and t h e j u ry wa s s h o wn , ch ar t s ref lecting defe ndant’s DNA profile and the ty pes Aper obtained from the scre wdriver and the hairs from the window. Aper explained that, on eac h char t, there wer e marking s ref lecting the 13 DNA loci. At eac h locus, there was a notation ref lecting the ty

pe obtained at that locus, and if there wa s n o DNA rec overe d at a locus, there was a notation ref lecting that. Aper then demonstrated for the jury how the char t ref lecting the ty

pes rec overe d from the scre wdriver compared with defe ndant’s profile such that defe ndant could be excluded as having contributed to the mix ed sample. Aper next explained the compar ison proce ss an d re s u lts obtained when compar ing defe ndant’s DNA profile to the seven- loci profile rec overe d from the hairs:
“I look at the first location. There ’s a 1618; [defe ndant is] a 1618. Second location, 1417; he’s a 1417. Third location, 1921; he’s a 1921. Four th location, 1213; he’s a 1213. This [fifth] location 2931.2; he is a 2931.2. Since there i s n o information in my crime

scene profile at this location, no compar isons r eally happen here

. So I g o down to he re, this D5 [ six th location] where ther e’s a 1012, [defendant] has a 1012. This D13 [seventh] location I have a ty pe 10, and he has a 1013. So he’ s g ot some. There is one ty

pe that’s consistent with this profile, but I di d n o t o b s er v e the 13 there

. But the problem is when we g et low level DNA samples, sometimes we have information below, let’s say , our threshold for analy sis. And that’s what happens sometimes we g et, let’s say , our threshold is set at 150; and that’s just telling y ou how high–how much DNA is there

. Fo r a t h reshold of 150, sometimes y ou can have information below our threshold, and that doesn’t show up on t h e char t. So this information here was strong enoug h for me that I could not e x clude him as a contributor beca use it’s possible that a 13 is at this location, but it ’s below our threshold.” Aper was asked, “[W ]i th reg ard to the DNA swabbing from the window, which y ou said the defe ndant cannot be excluded, what are the odds of finding that DNA profile in the g ener al population? ” (Presumably
, such that, like def endant, someone else’s D NA would, at those

seven loci, match the profile from the hairs on the window.) He replied: “Appr ox imately 1 in 1.4 billion black, 1 in 103 milli on white, and 1 in 170 milli on Hispanic individuals cannot be excluded from having contributed to that stain.” As defe ndant is a white male, “you would have to s am p l e roughly 103 milli on white people to find someone that also cannot be exclude[d] from that profile from that window.” Aper testified that he had chec ked earlier that morning , and the population of the United States is roug hly 307 milli on people. ¶ 11 Def

ense c ounsel’s entire cross-e x amination of Ape r follows:
“COUNSEL : Mr

. Aper
, y ou wer e just testifying about a g ener al population, people in the g ener al population. Your finding s then take into consideration only people who are unrelated to [defendant]; is that correc t?

-4-APER: That’s corr ect. COUNSEL : And that’s beca use people who are related share simil ar ty pes of DNA? APER: Yes. That’s possible.” ¶ 12 On re- cross, defe nse counsel clar ified that, while only identic a l tw in s w o u ld share exactly the same D NA at all

13 levels, a r elative mig ht share some levels. ¶ 13 Outside the prese nce of t h e j u ry , d ef en se counsel noted that defe ndant wanted her to

cross-e x amine Aper on the fact that defe ndant became a suspect in this case as a result of,

as counsel put it, a “hit” in the State’s databa se of convicted felons (which co n t ai n ed defe ndant’s DNA profile)

. The co u rt agree d with counsel that informing the jury that defe ndant was a convicted felon would not have been helpful to his case

. Def endant’ s motion for a direc ted verdic t at the close of the State’s case was denied. Def endant p resented no evidenc e. ¶ 14 In closing
, defe nse counsel highlig hted that the sole piece of evidenc e the State prese nted
to link defe ndant to the burg lary was the DNA evidenc e rec overe d from the hairs on the window. She reminded the jury that: (1) there wer e no ey ewitnesses; (2) no fing erpr ints wer e

rec overe d; (3 ) there was no evidenc e linking the bathroom footprint to defe ndant; (4) the DNA testing of the scre wdriver that was presumably used during the brea k-in did not match defe ndant; and (5) no stolen proper ty was trac ed back to him. As to the DNA rec overe d from the hairs, co u n sel noted that Aper testified only that defe ndant could not be excluded as having contributed to that sample; “[i] t’s not a perfec t match.” Counsel also noted t hat, of the 13 loci that are supposed to be profiled, 4 loci wer e not profiled or tes t ed

. S h e summarized that, of the nine loci that wer e profiled, “only s ev en wer e a match to [defendant]. *** J ust over half the DNA match is what we have here .” Counsel argued that other people in the g ener al population, including someone related to defe ndant, might have contributed to the sample. ¶ 15 The State, in its opening and rebuttal closing arguments, argued that Aper analy zed the evidenc e and foun d it “to match defe ndant.” The State noted that Aper testified that defe ndant’s DNAprofile would oc cur one time in 103 milli on white males, a nd g iven that the population of the United States is just over 300 milli on people, that means that only 3 people in the United States would have that profile. “So what is the likelihood of two other people other than the defe ndant happening to be in Rockford at Craig Corcora n’s house and leavingtheir DNAbehind? ” ¶ 16 On August 11, 2009, the jury found d ef en d an t gu i l t y o f re s i d en t i al burg lary . On Dec ember 10, 2009, at sentenc ing, the State highlighted for the court de fenda nt’s criminal history
, including multipl e convictions of residential burg lary and possession of a controlled substance and that defe ndant “has pretty much been incar cer ated in the Depa rtment of Corre ct i o n s or jail since August of 1988.” Def endant proce eded pro se at the sentenc ing hear ing. In his statement in allocution, defe ndant informed the court that he was involved in spiritual and other pr og rams. F urther, de fenda nt stated:
“I know m y p as t is any

thing but g ood to look at. I can even understand why the State’s asking for what they are

. I don’t want to sit here and make excuses for any thing. *** I g uess I don’t want to make excuses beca use I ca n u n d er stand wher e the State’s

-5-coming from and ever y thing from what they ’ve prese nted *** I know n o m at ter what
sentenc e you send forth is g oing to be less than what I deser ve. *** I would ask for forg iveness from all those that I have harme d. In the sense that in t h e p as t I m ay have been able to justify my actions, I cannot do that today
, other than what I can believe in, this is m y life, Jesus S avior pa

ying f or my sins.” Def endant’ s prior rec ord rende red him elig ible for Class X s en t en cing, and the court sentenc ed def

endant to the maximum s entenc e of 30 year s’ imprisonment. ¶ 17 Def

endant agr ee d t o al l o w t h e co urt cler k to file on his behalf a notice of appe al challeng ing his conviction. The trial court advised defe ndant that, if he wished to appea l his
sentenc e, he must file with the trial court a written motion to re consi der the sentenc e. Def endant asked to make an oral motion, but the court instead asked defe ndant if he wanted

an attorney to assist “in prepa ring any written motions challeng ing t h e s en t ence of the

s e nte n c in g h e aring ”; defe ndant answe red aff irmatively

. The court stated that it wo u ld a p p o in t an attorne y

to “re prese nt [defendant] on those motions.” The re cord r efle cts that, the same day
, the court issued a notice to post t ri al co u nsel, informing him of his appointment to repr esent defe ndant for “filing of ~ [ sic ] defe ndant’s postsente n c e mo ti o n s

. ” N o postsentence motions wer e filed. Rather, one wee k later, posttrial counsel filed on d ef endant’s behalf a notice of a

ppeal.

¶ 18 I I . ANALYSI S ¶ 19 A. Ineff ective A ssistance–Tr ial Counsel ¶ 20 Defen d an t ar gu es t hat trial counsel’s perf ormanc e constituted ineffe ctive assistanc e wher e she failed to co n v ey to the jury the insignifica nce of his DNA matching the crimescene DNA at only seven loci. Def endant notes that counsel failed to prese nt any evidenc e, throug h cross-e x amination or t he presentation of witnesses, reflec ting that a finding base d on a prof ile of fe wer

than 13 loci is unreliable. H e ar g ues t hat, at the tim e of his trial, such evidenc e was available and that counsel’s demonstrated lack of knowledg e ref lects that she did not investig ate the issue. Def endant argues that counsel’s actions cannot be considere d sound trial strateg y and that no rea sonably eff ective defe nse attorney prese nted with the same circ umstances would eng ag e in simil ar conduct. As the State’s prosec ution ag ainst him was based entirely on the DNA evidenc e and his conviction rested solely on Aper ’s t estimony
, defe ndant argues that, if counsel had prese nted evidenc e to show that the partial “match” was insignifica

nt, there is a re as o n ab l e probability that the result of the trial would have been differ ent. Def

endant reque sts that we reve rse his c onviction a nd rema nd the case for a new trial with differ ent counse l. ¶ 21 A defe ndant may raise an ineffe ctive-a ssistance claim on direc t appea l when the basis of the claim ca

n be asc erta ined from the rec ord. See, e.g. , People v . Phillips , 383 I ll. App. 3d 521, 544-45 (2008) (addr essing claims that could be asce rtained from the rec ord (counse l’s failure to re q u es t a jury instruction on a lesser included offe nse), but declining to addre ss claims that require d consideration of matters outside the rec ord (counse l’s failure to introduce into evidenc e a repor t not in the rec ord))

. Her e, defe ndant’s ineffe ctive-a ssistance claim challeng es counsel’s on-the-r ecor d perf ormanc e or, more importantly
, her absenc e of

-6-perf ormanc e. See, e.g. , People v. Fos t er , 1 6 8 I ll. 2d 465, 480 (1995) (noting in a postconviction setting that cer tain alleg ations reg arding an attorney ’s fai l u r es to perf orm constituted claims for which fac ts wer e contained i n t h e t rial rec ord and could have been raised on dir ect a

ppeal) . Specifica lly
, posttrial, de fenda nt in his pro se capa city

challeng ed counsel’s lack of cro ss-examination of the State’s DNA expert, her failure to prese nt any

ev i d en ce to challeng e the DNA evidenc e, and the overa ll eff ectivene ss of her eff

orts reg arding that evidenc e. There fore
, we can asce rtain from the rec ord whether counsel’s perf ormanc e (f

o r ex am p le, the extent of counsel’s cross-e x amination of the State’s key witness, counsel’s statements to the jury reg arding a “match,” and the fac t that she called no witnesses) fell below an objective standard of rea sonablene ss and cause d defe ndant prejudice . Contrary

to the dissent’s asser

tions, addressingdefe ndant’s cla im is proper. 2 ¶ 22 The six th amendment g uar an t ee s an ac cu s ed i n a criminal prosec ution the rig ht to assistance of counsel. U.S. Const., amend. VI

. The rig ht to counsel encompa sses the rig ht to effective counsel; “ ‘the essential aim of the amendment is to guara ntee an eff

ective advocate for eac h criminal defe ndant.’ ” People v. Holmes
, 141 I ll. 2d 204, 218 (1990) (quoting W heat

v. United States
, 486 U.S. 153, 159 (1988))

. T h e ap p ro p riate focus in evaluating a six th amendment claim is the adver sarial proce ss. Id. at 217. More specific ally
, a defe nse attorney has an “over arc hing duty ” to advocate for his or her client’s case and to use his or her skills and knowled ge t o rende r t he trial a reliable adversar ial proce ss. Strickland v. W ashington
, 466 U.S. 668, 688 (1984). The constitutional g uara ntee of eff

ective counsel co n t em p l ates that, to rende r the trial a

reliable adver sarial pr ocess, c ounsel will eng ag e evide ntiary rules
to shield his or her client from a decision based on unreliable evidenc e ( People v. Moore
, 279 I ll. App. 3d 152, 159 (1996)) and will appre ciate an d u n derstand the leg al principles applicable to the case (

People v. Faulkner
, 292 I ll. App. 3d 391, 394 (1997))

. Fur ther, “[i] t

co n templates assistance rea dy to provide an adver sarial chec k to a prosec utor’s excessive endea vors.” People v . Fletche r , 335 I ll. App. 3d 447, 453 (2002). ¶ 23 When a defe n d an t argues that counsel’s perf ormanc e was ineffe ctive, he or she must show both that: (1) the attorney ’s perf ormanc e fell below an objective s t andar d of

rea sonablene ss (def

icient perf

ormanc e prong ); and (2) there is a rea sonable probability that, but for the attorney ’s defic ient perf ormanc e, the outcome of the trial would h av e b een differ ent (pre

judice prong ). Strickland
, 466 U.S. at 687; People v. Villareal
, 198 I ll. 2d 209, 228 (2001). To succe ed on an ineffe ctive-a ssistance claim, both Strickland prong s must be satisfied. Strickl a n d
, 466 U.S. at 687; People v. W illiams
, 181 I ll. 2d 297, 320 (1998). A

rea sonable probability is a probability suffici ent to undermine confide nce in the outcome; specific ally
, that counsel’s deficient perfor mance rende red the result of the tria l unreliable or the proc eeding

fundame ntally

unfair. People v . Enis , 194 I ll. 2d 361, 376 (2000). ¶ 24 There is a strong presumption that an attorney ’s perf ormanc e falls within the wide rang e

Fur the r, our re fe re nce , la te r in thi s ana lysis
, to cer ta in sch ola rl y sou rc es re fl ect s m er el y the 2 exi st enc e of vario us ar gum ent s tha t cou nse l cou ld have use d, not tha t cou nse l sho uld have int rod uce d tho se spe ci fi c sou rc es int o eviden ce. Acco rdi ngly, tho s e s o u r c e s do not con st itute off

- the

- re cor d eviden ce pre cl udi ng cons ide ra ti on o f d ef end ant ’s cl ai m

.

-7-of rea sonable profe ssional assistance

. Trial strategy cannot be a basis for finding counsel

inef fec tive. See People v. Smith
, 177 I ll. 2d 53, 93 (1997). However
, the presumption that the challeng ed action or i naction was the product o f sound trial strategy may be overcome wher e no rea s o n ab l y eff

ective defe nse attorney , confr onted with the circ umstances of the d ef endant’ s trial, would eng ag e in simil ar conduct. Fletche r , 335 I ll. App. 3d at 453. Ou r revie w of defe ndant’s ineffe ctive-a ssistance claim is bifurcated: we defe r to the trial court’s finding s of fac t unless they are contra ry to the manifest weig ht of the evidenc e, but we assess de novo the ultimate leg al issue of whether counsel’s act or omission supports an ineffe ctiveassistance claim. People v. Bailey
, 375 I ll. App

. 3 d 1 0 5 5
, 1059 (2007). For the following

rea sons, we conc lude that, her e, both Strickland prong s are met. ¶ 25 First, we conclude that counsel’s perf o rm an ce fe l l b el o w an objective standard of

rea sonablene ss. Counsel failed to e f f e c ti vely challeng e the meaning or signific ance of Aper ’s conclusions based on onl y a p artial-pr ofile compar ison. Specifica lly
, Aper ’s testimony explain ed t h at he could compar e defenda nt’s DNA with only seven loci on the hair DNA. Counsel neither arg

ued nor prese nted any evidenc e challeng ing the reliability of a par t i alprofile compar ison. Nor did counsel probe the acc urac y of Aper ’s testimony of the statistical probabilities (“1 in 1.4 billion black, 1 in 103 milli on white, and 1 in 170 milli on Hispanic individuals”) of finding in the g ener al population another profile simil ar to defe ndant’s such that it would match the hair DNA at t hose seven loci. At the t ime of t rial, however, viable
arguments or evidenc e challeng ing t h e s i g nificanc e of Aper ’s finding s could have been made. 3 ¶ 26 For example, as to the signific ance of a “match” at few er than 13 loci, one leg al scholar has explained that matching at few er than 13 loci will exc lude a suspect i f it can be deter mined that there is no match at the rema ining available loci. “ When the same thirtee n loci can be ty

ped in a crime- scene sam p l e, a mere nine-[loci] match will not g ener ate a suspect. In fac t, the discrepa ncies i n t h e full profile at the other four loci will exclude a suspect as a possible source of crime- scene DNA.” David H. Kaye, Trawl ing DNA Databases f

or Partial Matche

s: W hat Is t he F

BI A fraid Of?
, 19 Cornell J .L

. & Pub. Pol’y 145, 153-54 (2009). Her e, counsel did not pre s s Ap er o r prese nt evidenc e reg arding the theore tical pos sibili ty that, if defe ndant’s DNA profile were found t o match the hair DNA
at seven loci, but t o not match at any of the six missing loci, defe ndant likely would be

ex cluded as the source of the crime- scene DNA. In fac t, Aper ’s explanation of th e ch ar t compar ison ref

lects that, at the seventh locus, Ape r could not with cer tainty state that defe ndant m atche d; “[t] his D13 [ seventh] location I have a t y pe 10, and he has a 1013. So he’s g ot some. There is one ty pe that’s consistent with this profile, but I did not observe the 13 there .” Aper explained that it was possible that defe ndant would match at that locus, but

T o sup por t h is ar gum ent tha t cou nse l’ s ina ct ion was unr eas ona ble
, def end ant dir ect s our 3

at te nti on to Peop le v. W r i gh t , No. 1- 07- 3106 (I ll

. App. Ma r. 26, 2010 ). On J une 3, 2011
, af te r bri ef ing in thi s app eal was complet e, the W ri ght dec is ion was wit hdr awn. Acco rdi ngly, we grant the Sta te ’s m oti on to st ri ke the por ti ons of def end ant ’s bri ef

s tha t re ly on tha t aut hor it y, and we do not

con si der the hol din g in Wr i g h t f o r thi s dis pos it ion

. However, we nevert hel ess fi nd use ful to our

ana lysis some of

th e l it er at ure summ ar ized t her ei n.

-8-that the threshold of the sample was simply too low to opine with cer tainty

. Counsel did not highlig ht this discrepa

ncy to the j ury or ex amine Aper on t h e fact that, at one of t he seven loci, he could not claim a match and, there fore
, conclude d only that defe ndant could not be excluded as a contributor, not that defe ndant was a match

. Instead, while counsel in closing
argument reminded the jury that not all 13 loci that are routinely profiled wer e available
, she stated t hat “seven were a match to [defendant]. *** J ust over half t he DN A match is what

we have here .” Counsel did not, howeve r, throug h evidenc e or argument, develop for the jury that the m issing loci could be critica l and, in fac t, exculpatory

. Whil e it was up to the j ury to de cide what weig ht to g ive a match at “over half” of a full DNA profile, counsel did not
prese nt the jury

with any information against

which to weig h that evidenc e. ¶ 27 The e rror

cre ated by

the abse nce of arg

ument or evide nce c halleng ing the streng th of a
p artial match is compounded by the absenc e of any argument or evidenc e challengi n g t h e statistical signific ance of a partial match. The statistical probability of finding a DNA profile in the g ener al population is a critica l step in DNA analy sis. See People v. Miller
, 173 I ll. 2d 167, 185 (1996) (“F or a [DNA] match to be meaning ful, a statistical analy sis is require d. The statistical analy sis deter

mines the fre quency i n wh i ch a match would occur in a databa se population.”). He re, A

per’ s testimony

reg ardingthe statistical probability of finding in the
g ener al populati o n a match to defe ndant’s DNA (such that it would, at the rele vant seven loci, match the partial profile from the crime scene ) was unchalleng ed. Howeve r, studies of various states’ databa ses collecting offe nders’ DNA profiles have led leg al s ch o l ar s and

ma th ematicians to doubt the alleg ed low probability of encounte ring a ra n d o m, p a r ti a l- p r o f il e “match” in the g ener al population. ¶ 28 For example, a 2005 study of the offe nder databa se in Arizona reve aled that, withi n the databa se of 65,493 pr ofiles, there wer e 122 pairs of pr ofiles that matche d at 9 loci (but did
not match at the other 4 loci), and another 20 pairs that matched at 10 loci (and did not match
at the rema ining 3 loci). Kaye, supra , at 154. In other words, more than 284 individuals had the same information (more specific ally
, alleles) at nine loci as at least 1 other individual in the databa se. These finding s prompted commentar y that, if the fre quency “for a nine- locus match is any

thing like one in 754 milli on for whites, a nd one in 561 million for blacks [ as

some DNA experts testify ], how can it be that a databa se as small as [Ariz ona’s with] a mere 65,493 entries produces even one such m atch? ” (I n t er n al quot ation marks omi tted.) Kay e, supra , at 155. Simi lar results have been discovere d in the offe nder databa ses in Mary land (32 pairs of 9-loci matches within a databa se of 30,000 profiles) and, appar ently
, C al i fo rn i a (among 65,000 profiles, there wer e 122 pairs that matche d at 9 o f the 13 loci). See Ken Strutin, Databases, E-Discov ery and Criminal Law
, 15 Rich. J .L

. & T ec h

. 6
, 54 (2009). 4 L eg al scholars and scientists have further questioned whether the “extraordin ar i l y larg e” fig ures used in court to estimate the probability of a random match in the g ener al population

are “no better than alche my ,” and one mathema t i ci an has called such numbers “ ‘total nonsense’ ” and “ ‘a damned l i e’ ” an d has stated that admitting this testimony in court is

I t app ear s tha t a si m il ar st udy has bee n con duc te d of the I ll ino is off end er dat aba se. See
, e.g. , 4 Str uti n, sup ra , at 48- 51. T hos e re sul ts wer e publ is hed in the wit hdr awn W ri ght dec is ion ; however, we do not have t hos e r esu lt s be for e us

.
-9-“ ‘disg rac eful’ ” and that courts “ ‘may as well admit alche my and astrolog y .’ ” Kaye, supra ,

a t 1 4 5
, 1 4 7 ( q u o t i n g K e i t h D e v l i n , D a m n e d L i e s ( O c t

. 2 0 0 6 )
, http:// www.maa .org/devlin/devlin

_ 1 0

_ 0 6

. htm l)

. N e v e rtheless, other than to sug g est that one of defe ndant’s relatives might have DNA simil ar to defe nd an t , t h e d efe nse prese nted no evidenc e or even argument that Aper ’s fig ures, g iven that they wer e based on only a partialprofile c omparison, might be inacc urate

. ¶ 29 The State argues that counsel did not perfor m unrea sonably , beca

use: (1) her decisions

wer e strateg ic; (2) the methods and statistical analy ses Aper employ ed have been found reliable in other case s ( e. g

. , Miller
, 173 I ll. 2d at 189); and (3) convictions have, in other

case s, been upheld based on matches at fe we r t h an seven loci. Thus, the State conclude s 5 that, g iven the established prec edent of the reliability of DNA evide n ce wi t h loci profiles either equal to or with few er than the seven here
, defe ndant was provided with competent repr esentation. ¶ 30 Ex tending this argument and taking it to its logic al conclusion, the State sug g ests that a defe nse counsel may be excused for not subjecting the State’s DNA evidenc e (her e, the only evidenc e offe red ag ainst defe ndant) to adver sarial testing if the methods used or resul ts f o u n d have been upheld in a

nother case

. We reje ct this argument. Simpl y put, the issue on appea l here con c e r

n s a d v o c a c y , n o t a d missibility

. We are not considering whether Aper ’s testimony
, the methods he used, and the ev i d en ce to which he testified wer e, in fac t, unreliable

. We offe r no opinion on whether a conviction based on a seven- loci match is sustainable. Fur ther,

we express absolutely no opinion about the acc urac y of the afor ementioned databa se studies or whether convictions in other cases were properly upheld on the part i al-prof ile matches. Altho u g h the dissent faults us for not commenting on the merits of the source s, the admissibili ty of the scientific evidenc e here is not at issue. Rather, we assess s i m ply the

com petenc y of counsel’s perf ormanc e. The fac t that other case s have upheld convictions based on few er- loci matches (whe re, as n o t ed, there was also signific ant corr oborating evidenc e of g uilt), or that the methods have been found reliable
, is irrele vant. Her e, reliability is simpl y divorce d from advoc acy

. ¶ 31 I t is critica l to note that, contra ry to the dissent’s char acte rization of our decision, we do
not find counsel’s perf

ormanc e defic ient simply beca use she failed to u se the ref ere nced

aca demic writing s, nor do we set knowledg e of obscure aca demic article s as t h e b aseline require ment for eff

ective repr esentation. Rather, we consider whether counsel, in her role as

For thi s ar gum ent , the Sta te re li e s o n the fol lowi ng out

- of-stat e and /or unpu bli she d 5
aut hor it y: Jac kso n v. Commonwe alt h, 587 S.E.2d 532 (V a. 2003 ) (DNA m at che d si x of ei ght lo ci and the def

end ant ’s det ai le d con fe ssi on was cor rob ora te d by the victi m ’s inj uri es) ; W il li ams v. Sta te , No. M2 007-02328- CCA- R3- PC, 2009 WL 2988 4 (T enn

. Cri m

. App. J an. 6, 2009 ) (un publ is hed ) (f ive- loc i m at ch and the victi m ide nti fi ed the def end ant ); Sta te v. Hick

s , No. 2793 9- 8- I I , 2003 WL 7342 32 (W ash

. Ct. App. Ma r. 4, 2003 ) (un publ is hed ) (f ive of nin e loc i m at che d and physic al eviden ce, suc h as the victi m ’s key s and knife use d in the cr ime, wer e ti ed to the def end ant ); Compt on

v. Hart le y , No. 07- CV

- 0236 3- WYD, 2009 WL 3052 290 (D. Colo

. Sept

. 22, 2009 ) (un publ is hed ) (no t

re ci ti ng fa ct s pre sen te d at tr ia l, but not ing tha t Colo ra do te st s onl y 7, not 13, geneti c l o c i
, and a

m at ch i s de fi nedas bei ng where al l 7 lo ci ar e e xac tl y the s ame).

-10-defe ndant’s advocate and with h er “o vera rching duty ” to use her skills and knowledg e to rende r the trial a reliable adver sarial proce ss, subjected the evidenc e ag ainst defe ndant to the ty pe of inquiry to which a rea sonably eff ective d ef

ense attorney , confr onted with the ci rc u m stance s of defendant’ s trial, would subject i t. In our vi ew, there is no question t h at , in any routine prese ntation of DNA evidenc e, a rea s o n ab l y ef fec tive defe nse attorney confr onted wit h the circumstances of defe ndant’s trial would, in som e ca pacity , arg

ue that

a DNA compar ison based on few er than 13 loci might be unreliable or that the partial profile

rec overe d might not be uncommon. Whil e the exis tence of the afor ementioned studies a nd
commentar

y (which, we note, perta ined to matches at nine loci, not only seven as prese nted here ) are examples of resour ces that could be ref ere nced to formulate those arguments, our assessment of counsel’s perf ormanc e is not tied to any particula r aca demic source or compilation of source s. Indeed, the well-e stablished fac t that the police routinely test DNA evidenc e at 13 loci is the only information neede d to make a basic argument that the fe wer loci available for testing the less cer tain the results m i gh t b e. Fu rt her, the fac t that, as the dissent points out, there is a statutory proce dure by which an attorney may reque st a databa se

sear ch for the rec overe d DNA profile (725 I L CS 5/116-5(a) (West 2006)) ref lects that attorney s nee d not act as, to use the dissent’s words, “omniscient aca demics” in order to know that questioning the statistical implications of a rec overe d DNA profile is a basic line of inquiry

. Infra ¶ 76. We conclude that it was objectively unrea sonable for counsel to ref rain from pursuing
, in any regard
, a challeng e to the signifi cance , if any , of the alleg ed seven- loci match pre sented. ¶ 32 When we view in its entirety the manner in which defe nse counsel handl ed the DNA issue in this case , it is clea r that co u nsel’s challeng e to this evidenc e was virtually nonexis tent, and quite possibly counsel simply did not understand the evidenc e. Ag ain (and unlike the cas es up o n wh ich the State relies to arg ue that convictions may be upheld on partial-pr ofile mat ches), the only evidenc e linking defe ndant to this crime (the seven- loci
compar ison) was uncorr o b o r a te d a n d unchalleng ed. Counsel’s cross-e x amination of the only witness linking defe ndant to the crime consisted of three questions. We do n ot mean to sug g est that the number of questions asked r ender ed the pe rfor mance per se unrea sonable. Indeed, we acknowledg e that, g ener ally speaking
, whether t o call particula r wit nesses and
t h e m an n er and extent of cross-e x amination are matters of trial strategy that will n o t ordinarily support an inef

fec tive-assistance -of- counsel c laim. People v. Ramey , 152 I ll. 2d 41, 54 (1992). Howeve r, as an ineffe ctive-a ssistance claim require s consideration of how a

rea sonably eff

ective defe nse attorney would conduct himself or herse lf if confr onted with the circ umstances of the def

endant’ s trial, the question of what constitutes sound trial strateg y is nece ssarily fac t-depe ndent. Fletche r , 335 I ll. App. 3d at 453. The pre s u m p t i o n that counsel’s actions or omissions wer e the product of sound trial strategy may be rebutted when the chosen strateg y is “so unsound that counsel complete ly fails to conduct any meaningful adversarial testing .” (Emphasis added.) People v. Leeper
, 317 I ll. App. 3d 475, 482 (2000). Her e, there was only one piece of evidenc e linking defe ndant to the cri m e, an d the circ umstances require d subjecting that evidenc e to adver sarial testing beyond that display ed. As such, we conclude that counsel’s perf ormanc e fell below an obj ective standard of

rea sonablene ss.

-11-¶ 33 Turning to the Strickland prejudice prong , we conclude for simil ar rea sons that there is

a rea sonable probability
, i.e.
, a probability sufficie nt to u n d er mine confide nce in the outcome, that, but for counsel’s defic ient perf ormanc e, the outcome of the trial would have been differ ent. Strickland
, 466 U.S. at 687. “DNA evidenc e is often assumed to h ave a specia l aura of cer

tainty and my stic infallibilit y ***.” J oel D. L ieber man et al.
, Gold Versus Platinum: Do Jurors Rec ognize the Superiority of DNA Evidenc e Compared to Other Types of Forensic Evide nce? , 14 Psy chol. Pub. Pol’y & L . 27, 52 (2008). He re, the re w as a ba sis
to challeng e the i n fa l l ibilit y of t he DNA evidenc e aga inst defe ndant, which was portray ed

as a “m atch,” but that argument and evidenc e was not develope d. Given that the DN A evidenc e here was the only evidenc e ag ainst defe ndant, there is a rea sonable probability that, if counsel had eff

ectively explained and argued to the j ury the pot ential weaknesses of the evidenc e, re asonable doubt as to defe ndant’s guilt mi g ht have be en ra ised. ¶ 34 We note that we disag ree with the State that d ef en s e co u n s el cured any prejudice in closing argument. Aper

testified only

that defe ndant could not be excluded as contributing
t o t h e profile obtained from the hairs on the window. In closing
, howeve r, the S t at e emphasized that Aper found a “match,” and althoug h defe nse counsel i n h er cl osing

acc urate ly rec ounted Aper’s finding, s he neverthele ss proce eded to ref er to the “match ” at seven points and say that “over half the D NA match is what we have.” Fur ther, counsel’s 6 inacc urate summary of Aper ’s statistics–stating that one-third of the population would have defe ndant’s DNA profile–sug g ests a lack of understanding of the evidenc e. Thus, while the defe nse closing argument made cl ea r t h at there was no other evidenc e for the jury to consi der, it did not era se the prejudice cre ated by the failure to subject that rema ining evidenc e to adve rsar ial testing. ¶ 35 Moreove r, we disag ree with the State and the dissent that there is no prejudice beca use defe ndant admitted his g uilt at the sentenc ing hear ing wher e, in his statement in allocution, he apolog ized to those he had harme d, indicated that he understood why the State was asking for the maxi mum sentenc e, stated that he could not justify his actions, and commented that
any punishment he rec eived would be less than what he deser ved. I t is clea

r that, to constitute

a judicial confe ssion, the statement must directly acknow ledg e g uilt or di r ec t l y and

n ec essar ily imply g uilt. Compare People v. Gree n , 17 I ll. 2d 35, 39, 41 (1959) (f i n d i n g a judicial confe ssion wher e the defe ndant’s in-court statement was “ ‘Well, I will tell the truth,
y our Honor. Y ou see, I

committed the crime.’ ”), w ith People v . Redd
, 173 I ll. 2d 1, 29-30 (1996) (finding that the S t at e i m proper ly char acte rized as a confe ssion the defe ndant’s
statement to a witness, wher ein he asked who “killed the kids” (sug g esting knowledg e of the killings that others lacke d), beca use the defe ndant did not there in “dire ctly acknow ledg e his commission of the offe nses”)
, and People v. Hunter
, 331 I ll. App. 3d 1017, 1025-26 (2002)

We not e tha t we si m

ply can not abi de by the dis sen t’ s sugg est ion tha t a la yperso n on a j ury, 6 who ha s rece ived abso lut el y no guid anc e from def ens e c ouns el abo ut a no nex cl usi on a nd whe the r tha t is
, in fa ct , dif

fe re nt fr om a m at ch is abl e to par se out the pot ent ia ll y nua nce d dis ti nct ion on his

or her own. A s suc h, we dis agree wit h the dis sen t’ s sugg est ion tha t cou nse l’ s re pre sen ta ti on was ef fe ct ive whe n sh e t old th e j ury th at def end ant ’s pr ofi le was a seven- loc i “m at ch” to tha t f rom the hai rs

.
-12-(the defe ndant, convicted of forg ery , stated at sentenc ing that his “ purpose” in g oing to the

curr ency exchang e was to “ ‘obtain more curr ency for more cra ck coca ine’ ”; court disag ree d that stating the purpose for g o i n g t o t he exchang e was sufficie nt to constitute a judicial confession that the defe ndant was the person who forg ed the chec k). Her e, defe n d an t ’s statement, which intermittently discussed prior crimes, his faith, and a c c e pting responsibility for those he had harme d, was simply too vague to be considere d a confe ssion. Instead, while defe ndant’s statements may be rea d to sug g est g uilt, they may also be rea d as ref err ing to his

remorse for a life of crime g ener ally
, and not specific ally to this offe nse, in an attempt to obtain the most lenient sentence possible. ¶ 36 We further disag ree with the dissent’s p o s it ion that defe ndant’s examination of witnesses
at his posttrial motion hearing meets the standard of a judicial confes s i o n

. “A judicial confe ssion is a volunt ary acknow ledg ment of guilt during a judi cial p ro cee ding, such as a plea of guilty, testimony at trial, or testimony at some other h ea r i n g

. ” (Emphasis added.) Hunter
, 331 I ll. App. 3d at 1025; see also Gree n , 17 I ll. 2d at 41-42 (“a judicial confe ssion consists of a plea

of guilty to an indictment or some similar action or conduc t in a court or judicial proce eding

. [ C i t ations.] The testimony of an acc used at the trial may constitute a judicial confe ssion, [citation] or such confe ssion may consist of a s tatement befor e a mag istrate on preliminary [hearing ].”). At the posttrial motion hear ing, defe ndant offe red no g uilty plea or persona l testimony
, and his questions of witnesses and introd u c tion of evidenc e

are not a kin to a g uilty plea or his own testimony

. Rather, as his motion alleg ed ineffe ctive assistance of counsel, defe ndant’s prese ntation at the hear ing was desig ned to establish that he and his counsel had disag ree d about trial strategy , namely
, whether defe ndant should take the stand, confe ss to the cri m e, an d tell the jury that, beca use God forg ives him, the jury should enter a not-g uilty verdic t. Counsel advised ag ainst that strate gy , and defe ndant challeng ed that advice at the hear ing. There fore
, defe ndant’s examination of witnesses and
prese ntation of exhibi ts ref lected that defe ndant, at one point in pretria l strategy discussions with his attorney , sug g ested makinga judicial conf ession but did not ultimately do so. We view this evidenc e as simil ar to other testimony
, at the same hear ing, refl ec t i n g that defe ndant had eng ag ed in g uilty -plea discussions with the State. The fac t that defe ndant
enter tained pleading g uilty does not equate to a g ui l t y p l ea. Simi larly
, evidenc e that d ef en d ant discussed with counsel confe ssing to the crime in court does not equate to a judicial confe ssion. We conclude
, there fore
, that S tr ickland ’s prejudice prong is satisfied and that there is a rea sonable probability that, but for counsel’s err ors, the result of the trial would have be en diffe rent. ¶ 37 Acc ording ly
, w e r e v e rse defe ndant’s conviction and rema nd the cause for a new trial with

new counsel. Moreove r, beca use we are rema

nding for a new trial, we must consider whether the evidenc e was sufficie nt to prove defe ndant’s g uilt beyond a rea sonable doubt. People v. Fornear
, 176 I ll. 2d 523, 535 (1997). Her e, defe ndant makes n o argument reg arding the sufficie ncy

of the e vidence , and we conclude that, if the evide nce pr esente d is acc epted by the jury , it would support a finding of guilt. Thus, there is no double jeopardy impediment
to a new tr ial. Fornear , 176 I ll. 2d at 535.

-13-¶ 38 B. Ineff ective A ssistance–Posttrial Counsel ¶ 39 Def

endant next argues that posttrial counsel provided ineffe ctive assistance wher e he did not f ile a postsentencing motion. Howe ver, as we are reve rsing defe ndant’s conviction and

rema nding f or a ne w trial, we need not a ddress this arg ument.

¶ 40 I I I . CONCL USI ON ¶ 41 Fo r t h e fo re going rea sons, the judgme nt of the circ uit court of Winnebag o County i s

reve rsed, a

nd the ca use is rema

nded.

¶ 42 Reverse d and re manded.

¶ 43 J USTI CE BI RKETT, dissenting: ¶ 44 I respe ctfully dissent. First, I disag ree that trial counsel’s challeng e to the streng th of the State’s DNA evidenc e fell below profe ssional norms beca use counsel failed t o co n d uct a

more thoroug h cross-e x amination of the State’s expert or reta in a defe nse expert to challeng e the theore tical basis for the State’s DNA analy sis. Sec ond, I ag ree with the State that, even i f counsel’s perfor

mance was deficient, defenda nt suffe red no prejudice
, beca use he mad e confe ssions during his sentenc ing. Thoug h the State does not rec og nize it, d ef endant also made c onfessions duringthe hea ringon his pro semotion for a new trial.

¶ 45 I . Trial Counsel’s Perf ormanc e Was Not Def

icient ¶ 46 First
, I s t re s s j u s t h o w h i gh a b u rd en defe ndant fac es attacking trial counsel’ s perf ormanc e. “The benc h m ark for judging any claim of ineffe ctiveness must be whether counsel’s conduct so undermined the proper functioning of the adver sarial proce ss that the trial cannot be relied on as having produce d a just result.” Strickland
, 466 U.S. at 686. “[T] he defe ndant m ust prove that counsel made err ors s o serious, and that counsel’s perfor mance was so def

icient, t hat counsel was not functioning as t he ‘c ounsel’ guara nteed by the six th amendment.” People v. Richardson
, 189 I ll. 2d 40 1
, 4 1 1 (2 000). “[C] ounsel’s strateg ic decisions are virtu al l y u n challeng eable ” ( People v. Palmer
, 162 I ll. 2d 465, 476 (1994)) ; “matter s of trial strateg y will not support a claim of ineffe ctive assistance of counsel unless counsel failed to conduct any meaning ful adver sarial testing” ( People v. Patterson
, 217 I ll. 2d 407, 441 (2005))

. Given the sketchy rec ord on the i neff ectivene ss claim, perha

ps the principle m o s t i m p ortant here is that a “strong presumption” exis ts that “trial counsel had
g ood rea sons f

or strateg ic decisions.” United States v. Lindsey
, 157 F.3d 532, 535 (7th Cir. 1998). ¶ 47 I divide my analy sis of t rial cou n s el ’s p er formance into two sections. The first section addre sses counsel’s perf

ormanc e at trial. The second sectio n examines counsel’s overa ll
repr esentation in the case, as counsel’s perfor mance at t ri al was but one component of t he conduct that Strickland require s us to examine. “The issue of incompetenc y of counsel is alway s to be deter

mined from the totality of counsel’s conduct.” People v. Mitchell
, 105 I ll. 2d 1, 15 (1984); see also Montgomery v. Peterson
, 846 F.2d 407, 4 1 2 (7 t h C ir. 1988)

-14-(“Counsel’s perf ormanc e must be evaluated in view of the totality of the circ umstances ***.” (citing Strickland
, 466 U.S. at 689)). As I explain in g reater detail below, the rec ord ref lects that counsel eng ag ed in the sound pretria l strategy of pursuing plea neg otiations with the aim of minimi zing the substantial prison time to which defe ndant was exposed g iven the multipl e p en ding char g es he was fac ing in addition to the residential burg lary char g e in this cas e. Those six additional charges included three char g es of residential burg lary
, one char g e of possession of a stolen vehicl e, o n e ch arge of theft, and one char g e of criminal trespass to land. I n ag g ravation at s entenc ing, the State produce d compelling evidenc e of defe ndant’s in v o lvement in two specific residential burg laries, which, though it is unclea r, may have been
among the case s pending during the proce eding s below. Counsel secur ed a rea sonable offe r of 25 to 30 y ear s in prison, which was in the lower half of the rang e of prison time (12 to 60
y ear s) that defe ndant would have fac ed if convicted of the curr ent offe nse and of one or more additional residential burg laries if committed while he was on bail for the curr ent offense. Def endant, howeve r, reje cted the offe r, was tried, and then was sentenc ed to the maxi mum of 30 y ear s on the one burg lary count alone. Trial court rec ords, of which this court may take judicial notice (see In re Estate of Pellico
, 394 I ll. App. 3d 1052, 1059 (2009) (taking notice of circ uit court rec ords)), show that all other pending char g es wer e dismiss ed on Dec ember 6, 2010. Viewe d in its totality
, counsel’s conduct was prudent and rea son ab l e, since defe ndant was spare d from the m u ch harshe r sentenc e that he would have rec eived if convicted on the rema ining pe nding c harg es.

¶ 48 A. Counsel’s Conduct at Tria l ¶ 49 M y i n i t i al complaint is that the majority ’s conclusions are not based on the rec ord, as there virtually is no rec ord o n t h e specific issues that defe ndant raises on appea l. In defe ndant’s pro se posttrial motion, the alleg ation of ineffe ctiveness for counsel’s handling of the DN A issue consisted of just these f ew lines in par ag raph 10:
“10. Under the line of defe nse [t hat] counsel chose for the defe ndant his rig hts to adequate repr esentation and a meaning ful adver sarial defe nse wer e violated to [ sic ] a fair trial in the said way s: (1) By both failing and neg lecting to question and challeng e the [S tate[’]s witness

conce rningevidenc e and r eports. [Cit ation.]”
At the evidentiar

y hear ing on his posttrial motion, at which defe ndant also appea red pro se , defe ndant questioned trial c ounsel on her ha ndling of the DNA issue: “Q. How come you never

called a ny body on behalf of the de fense to question y our line o f re asoni ng as far as the Buc cal swab testings or hair testing, as to counter the defe nse–or the State’ s evidenc e?
A. Well, the technicia

n that did the testing testified, and I cross-e x amined that person. Q. Eff ectively ?
A. I believe so. Q. Do you rec all the questions y ou asked? A. Specific ally , no.

-15-Q. Do you rec all questioning–how many witnesses y ou questioned during the trial?
A. No

. I know that there wer e witnesses that I asked no questions of. Those we re simply witnesses that testified that there had been a burg lary

. And I was pretty clea r there had been a burg lary

. The question was whether or not y ou had committed it. So the main focus wa s on the DNA te stimony

. Q. Okay . Your line–your line of de fense was?
A. Simpl y that they could not prove the case beyond a rea sonable doubt, based on the evidenc e that they

had. Q. Okay

. An d y ou never called into question any other person to dispute the evidenc e? A. Did I call witnesses? Q. Corre ct. A. No.
* * * Q. As far as the State making comments in ref ere nce t o statistical data in trial, in closing arguments, y our line of defe nse was that evidenc e could be–couldn’t ex clude
any body related to me, cor

rec t? A. That wa s one ar g ument, y es. * * * Q. So as far as [t he State] making ref ere nce to statistical data that was contra ry t o y our line of de fense , why didn’t y ou object?
* * *
THE COURT: *** The question is, was there any thing that was bei n g argue d that

was a misstatement of the evidenc e by either side. The question is, did y ou fee l there was any misstatement made by

opposing c ounsel of the e vidence ? A. Not that I

specific ally

rec all. I f there was–I

mean I g uess I just don’t remember

. Q. So y ou don’t rec all her c losing a rgument?
A. Gene rally

Irec all. Idon’t–Idon’t reme mber a ny specific misleading .” ¶ 50 Follow i n g t h e testimony
, the parties argued the merits of para g raph 10 of the posttrial motion, and the trial court made its ruling:
“THE COU RT: [ Paragraph 10.] [Defenda nt] : Under the line of defe nse counsel chose for the defe ndant his rig hts to

a mean i n gfu l
, adver sary defe nse wer e violated and a fair trial in said way s. And I stipulated six differ ent way s, and I went over them during qu es t i o n i n g, as far as my attorney . And they ’re pretty clea r-c ut, as far

as how they ’re written down. THE COURT: Do you wish to respond?
MS. L OMBA RDO [Assi stant State’s Attorney]: J udg e, I g uess I would just note that they are all very vague. There is nothing specific about his a lleg ations, so I don’t know how they are sufficie nt for the Court to make a ruling with r eg ards to what specific ally

-16-that [ sic ] he is alleg ing s h e fa i l ed t o do. Other than that, I would just stand on the testimony that’s been prese nted here at trial. And I do believe that [t rial counsel] did not commit any

err ors. THE COURT: Iwill deny para g raph 10 in its entirety .” ¶ 51 As the S tate noted, defe ndant’s allegation of i neff ectivene ss in para g raph 10 rema ined “vague” even afte r the testimony and argument. The only evidenc e pertinent to para g raph 10 that defe ndant elicited at the eviden t i ar y hear ing was trial counsel’s testimony that her “foc us” at trial was the DNA testimony
, that she believed that her cross-e x amination of Aper

was “ef fec tive[ ],” that she called no witnesses for the defe nse, and that she made no objection to any part of the State’s closing argument and could not rec all any thing “misleading ” in that argument. In arguing para g raph 10 of his motion, defe ndant essentially stood on the testimony

. “Unde r the standards laid out in Strickland
, the defe ndant must point
to a specific act or omission of counsel which he alleg es shows prejudice or unprofe ssional

err or.” People v. Colli ns , 153 I ll. 2d 130, 140 (1992) (citing Strickland
, 466 U.S. at 690). The trial court proper ly denied the ineffe ctiveness claim, as defe ndant specifie d no way in which trial counsel (as he alleg ed) “fa il[ ed] and neg lect[ed] to question and challeng e the [S tate[’]s witn es s conce rning evidenc e and repor ts.” See Colli ns , 153 I ll. 2d at 140 (def endants’ postconviction claims of ineffe ctivene s s o f tria l c o u n s e l f a il e d u n der Strickland as defe ndants did not “re fer to specific actions or arguments the trial counsel should have made” ); People

v. W illiams
, 139 I ll. 2d 1, 17 (1990) (in case wher e inef fec tiveness was alleg ed for the first time on appea l, it was inadequate for defe ndant to asser t simply that “trial counsel ‘entire ly failed to subject the pros ec u tion’s case to meaning ful adver sarial testing’ and that ‘trial counsel *** ob

j ec t ed not often enoug h,’ objecting ‘a g rand total of six times’ ”). Trial counsel acknow ledg ed that she called no witn es s es for the defe nse, but defe ndant did not articulate how any

such witnesses c ould have he lped the def ense. ¶ 52 Gi v en d ef

en d an t ’s fa i l u re to develop his vague asser tions, I cannot ag ree with th e majority ’s descr iption: “[D]efendant *** challeng ed counsel’s lack of cross-e x amination of the State’s DNA expert, her failure to prese nt any evidenc e to challeng e the DNA evidenc e, and the overa ll ineffe ctiveness of her e ffor ts reg ardingthat evidenc e.” Supra ¶ 21. This is, in my view, an unwar

rante d expansion of defe ndant’s bald claim that trial counsel “fa il[ ed] and neg lect[e d ] t o qu est ion and challeng e the [S tate[’]s witness conce rning evidenc e and
repor ts.” Def endant never identified in what specific way trial counsel’s eff orts fell short. His thin posttria l eff

orts cannot rea sonably be called (as the majority terms it) a “cha lleng e,” much less a “ challeng e” to a ny specific act or

omission by

trial counsel. ¶ 53 Appellate counsel for defe ndant now attempts to revivify the ineffe ctiveness claim. The attempt is limit ed by the sparse rec ord develope d below, beca use “[a] court of revie w must deter mine the issues befor e it solely on the basis of the rec ord m ad e i n the trial court” ( People v. Reimolds
, 92 I ll. 2d 101, 106-07 (1982))

. The majority
, howeve r, allows appellate counsel to expand the ineffe ctiveness claim into a shape unrec og nizable from the form it had below. The vague, undevelope d al l egations have ballooned into a focuse d attack on trial counsel. The majority ag ree s that trial counsel’s perf ormanc e fell below profe ssional standards and highlig hts three main omissions by trial counsel in her challeng e to the DNA evidenc e. First, counsel failed t o exploi t Aper ’s acknowledg ment that, with respect t o one

-17-of the seven loci, he could n o t p o s i t i v ely say that defe ndant was a “match” (to use the

majority ’s term). Secon d
, co u n s el failed to “pre ss Aper or prese nt evidenc e reg arding the theore tical pos sibili ty that, if defe ndant’s DNA pro file were found to match the hair DNA
at seven loci, but to not match at any of the six missing loci, defe ndant likely woul d be excl uded as the source of the crime- scene DNA.” (Emphase s in orig inal.) Supra ¶ 26. In support, the majority cites the work of “one le g al scholar ,” David Kay e, who, a ccor ding to appellate counsel, has “explained that matching at few er than 13 loci will exc lude a suspect if it can be deter

mined that there is no match at the rema ining available loci.” (Emphasis in orig inal.) Supra ¶ 26. Third, counsel neg lected to use rec ent literature in wh i ch “l eg al

s ch o l ar s and mathematicians *** doubt the alleg ed low probability of encounte ring a random, partial-pr ofile ‘match’ in the g ener al population.” Supra ¶ 27. Be low, I explain the relationship among these conclusions and addre ss them on their merits. For no w, I note a fundame ntal proce dural proble m with the majority ’s cour se of a ction. ¶ 54 Regar d i n g its third point, the majority has in mind specific ally the studies of off ender databa ses in Arizona, California, an d Mary land, as well as the opinions of scholars challenging the soundness of statistical probabilities g ener ated by the product rule. The majority has mined this literature and data from the withdrawn W right opinion. The W

right 7 court, howeve r, at least took pains to note which extrajudicial information cited by the parties

on appea l wa s ac tually befor e the trial court when it ruled on the defendant’s moti on for a pretria l databa se search. See W right
, slip op. at 32 (“A lthough the trial court in the case at bar was not prese nted with the results of the Mary land or I llinois sear ches, the trial court did have in front of it information from the sear ch of the Arizona databa se, which reve aled 120 pairs of 9-loci ‘matche s’ in a d ataba se of 65,493 offe nders.” ). The majority here is not so cautious, but acc epts appellate counsel’s offe ring of multip l e s ch o l arly source s, none of which was even mentioned in the posttrial proce eding s on defe ndant’s ineffe ctiveness claim. ¶ 55 I cannot endorse this approa ch. Though the State (oddly ) does n o t complain that appellate counsel is improperly enlar g ing the ineffe ctiveness claim, this court has, nonethel es s , a responsibility to reta in its role as an err or-c orre cting tribunal acting within the bounds of the trial rec ord. The problem of ineffe ctiveness claims spring ing up for the first time on appea l and lacking a proper ly develope d rec ord is not a new one. Our appellate court has repe atedly noted the sever e limit ations the defe nse fac es when it a ttempts to alleg e ineffe ctiveness based

on a silent r ecor d–as was essentially done here g iven that the claim at hand was prac tically undevelope d in the trial court. See People v. Ligon
, 365 I ll. App. 3d 109, 122 (2006) (“Where the dispos i t i o n of a defe ndant’s ineffe ctive assistance of counsel claim require s consideration of matters beyond the re cord on dire ct appe al, it is more appropr iate that the defe ndant’s contentions be addr es s ed i n a proce eding for postconviction relief
, and the appellate court may proper ly decline to adjudicate the defe ndant’s claim in his direc t appea l fro m h i s cr i m inal conviction.” (Interna l quotation marks omi tted.)); see also In re Ch. W

. , 399 I ll. App. 3d 825, 829 (2010) (“O ne of the problems with raising an ineffe ctive-a ssistance claim on direc t appea l is [t hat] ‘appe llate counsel and the court must proce ed on a trial rec ord

As t he maj ori ty re cognizes , we gra nte d t he S ta te ’s m oti on t o st ri ke W ri ght

. 7

-18-not develope d prec isely for the object of litigat i n g o r p reserving the claim and thus often

incomplete or inadequat e for this purpose.’ ” (quoting Massaro v. United States
, 538 U.S. 500, 504-05 (2003)) ). More to the point, we should not allow a party to contrive an issue for
appea l by simply citing us scholarly source s. See Hernande z v. State
, 116 S.W .3d 26, 31-32 (Tex. Crim. App. 2003) (prose cution could not of fer
, for the first time on appea l, scientific literature endorsing the “ADx analy zer” as a reliable test for the prese nce of drug s in urine; the prosecution “ca

nnot now rely on the appellate courts to become independent s cientific sleuths to fer

ret out the appropr iate scientific materia ls which could support the trial court’s decision to allow the ADx technicia n’s testimony

. *** [J ]udi cial notice on ap peal cannot

serve as the sole source of support for a bare t ri al court rec ord conce rning scientific reliability .”). ¶ 56 I rec og nize that, in People v. Dalco l l o , 2 8 2 I l l

. App. 3d 944, 955 (1996), one of the

ear liest case s in I llinois to consider the admissibili ty of statistical probabilities g ener ated by the product rule, this district held that, wher e a revie wing court is fac ing “the question of the 8
g ener al accepta

nce of a new

scientific theor

y or t echnique ,” the court need not “dete rmine the issues on appea l based solely on the trial court rec ord
, ” but may “conside r the expert evidenc e prese nted in the trial court, judicial opinions from other jurisdictions, and an y pertinent leg al and sc ientific commenta ries.” ¶ 57 Dalcollo ’s approa ch does not transfe r to the prese nt situation. This court is not fac ing the question of the g ener al admissibili ty of particula r scientific evidenc e, wh er e it is arguable
t hat a revie wing court needs to draw on all pertinent resour ces befor e cra fting a broad
pronounce ment on admissibili ty

. The question is the competenc y of counsel’s perf ormanc e under the law as it exis ted in August 2009, and counsel could n o t have been expected to advocate for, or

anticipate, a

ny chang e in the admis sibili ty of DNA evidenc e. (I n fac t, it is doubtful that an ineffe ctiveness claim, strictly construed
, c o u ld e v e r be a vehicle for chang ing the underlying law.) The majority would appea r to ag ree g iven its comment that the issue at hand “conc erns advocac

y , not admissibil ity ” (e mphasis in orig inal) ( supra ¶ 30) and g iven its ref usal to take any stance on t he ult imate m erit of the s cholar ly opinions it cites, which

are critica l of th e p roduct rule, the methodology that Aper utiliz ed. The only scholarly opinion the majority cites reg arding the statistical probabilities g ener ated by the product rule

comes in the form of s n i p pets that Daniel Kaye quotes from mathematician Keith Devlin. Devlin, howeve r, uses rathe r harsh languag e in denouncing the very admission of statistical evidenc e base d on the produc t rule: “When a def

endant’s DNA matches that from a crime- scene , it is standard prac tice to introduce the probability of a random match in the g ener al population. *** [I ]t is easy to be skeptical of s u ch ex t re me claims. Keith Devlin, a mathematician at Stanford Univ er s i ty , calls them ‘total nonsense’ and a ‘damne d lie.’ In Devlin’s view, it is ‘disg rac eful’ that courts allow experts to p r o v ide such small random-match probabilities:

Dalc oll o was dec ide d rou ghly two weeks af te r, yet (s tr angely) did not ci te , Mi ll er , 173 I ll

. 8 2d at 189, in whic h the sup re m e cou rt embrace d “t he pro duc t rul e [a s] a genera ll y acc ept ed st at is ti cal

m et hod for es ti m at ing th e f re que ncy of a DNA match. ”

-19-‘They may as we ll admit alc hemy and astrolog y .’ [C itations.] ” Kaye, supra , at 147-48. ¶ 58 The majority believes that trial counsel di d n o t h ave to advocate for abolition of the product ru le to be an eff ective counselor, but, strang ely
, the only opinion the majority identifies as an example of the strategy that counsel should have adopted condemns the product rule in the most strident terms. The majority g ives no indication of how trial counsel

was supposed to use Devlin’s opinion, much less how counsel was supposed to use it short of challeng ing, as Devlin does, the basic reliability of the product rule. In my view, Dalcollo definitely does not apply here
, y et I am not convince d that the majority is itself treating this question as one of

advoca cy rathe r than a dmissibi lity

. ¶ 59 Even if it were proper for this court to acc ept t hese scholarly source s cited for the first time on appea l, the ineffe ctiveness claim would still fail beca use there is no rec ord as to why trial counsel did not pursue cross-ex am i n at i on or introduce evidenc e based on those opinions. I f appellate counsel is allowed to re ly on those opinions in order to criticize trial counsel, who, if only the matter had been raised below, might have g iven leg itimate rea sons for not utiliz ing this information, appellate counsel will be by passing the proof proce ss and ambushing on appea l not only trial counsel, whose reputation is at stake, but also the State, which n o w must defe nd trial counsel’s actions by simply conjec turing as to why counsel
acte d as she did. An inef

fec tiveness claim ca

nnot proce ed in this way , as ca se law shows. ¶ 60 In Ligon
, the defe ndant alleg ed, for the first time on appea l, two instances of ineffe ctive assistance of counsel. First, the defe ndant alleg ed that trial counsel was ineffe ctive for failing
to interview a cer

tai n witness, Compton, prior to trial. Second, the defe ndant alleg ed that counsel violated canons of profe ssional ethics by claim ing, without justification, that Compton would testify at trial. Ligon
, 365 I ll. Ap p

. 3 d at 121-23. The appellate court declined to adjudicate the issues beca use they had not been raised below and no rec ord was develope d as to why

trial counsel a cted a s they did: “[The issue of trial counsel’s failur e t o i n t er view Compton prior to trial] was not specifically raised in defe ndant’s posttrial motion and no evidenc e perta ining to this particula r contention was elicited du ri ng the hear ing on the motion. For instance, the
court did not hear evidenc e that Compton was, in fac t, available to be interviewe d prior
to the commence ment of trial. Consequently
, we ca n n o t deter mine from the rec ord whether defe nse counsel’s decision not to interview Compton until trial had commence d

was a matter of nece ssity
, beca use Compton was unavailable or some other extenuating circ umstance e x isted, a matter of trial strategy

or simply

a re sult of incompetence

. ***
*** [As to trial counsel’s rep r e sentation that Compton would testify
, the] [d] efe ndant did not r aise this pa

rticular contention in his posttrial motion. At the hear ing, Compton testified that he did not speak to defe nse counse l until t he day of trial. Def

ense counsel testified that he had spoken with L igon sever al times prior to trial and that he specific ally had spoken to defe ndant about Compton. Nonethele ss, d efense counsel was not asked about his rea sons for his opening statement that Compton would testify

. Acc ording ly
, it is imposs ible for us, a

t this juncture, to deter

mine whether
, despite t he fact t hat he had
not y et i n t erviewed Com pton, trial counsel had some other reasona ble basis to believe

-20-that Compton would t estify .” Id. at 122-23.

The court reje cted the ineffe ctiveness c laims, noting that a post conviction proceeding was the proper avenue for bring ing them. Id. ; see a lso Busby v. State
, 990 S.W .2d 263, 268-70 (Tex. Crim. App. 1999) (“A defe ndant must overc ome the strong presumption that an attorney ’s actions wer e sound trial strategy ,” and “[o] rdinarily
, that presumption cannot be

overc ome absent evidenc e in the rec ord of the attorney ’s rea sons for his conduct.” ); People

v. Mendoza Tello
, 933 P.2d 1134, 1135 (Cal. 1997) (“[if] the rec ord on appea l sheds no light

on why counsel ac t ed o r failed to act in the manner challeng ed[,]

. . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfac to ry ex p l anation, the claim on appea l must be reje cted” (interna l quotation marks omitted)); Robertson v. State
, 319 N.E.2d 833, 836 (Ind. 1974) (“the trial attorney ’s rea sons for his decisions rema in unexplained,” and “[w]i thout evidenc e to the contra ry , we presume there wer e leg itimate rea sons for the tac tical dec isions which are at issue on this appea l”). ¶ 61 The majority does not attempt to distinguish Ligon b u t ci t es t wo ca s es , P eople v. Phillips
, 383 I ll. App. 3d 521 (2008), and People v. Foster
, 168 I ll. 2d 465 (1995), which, it claims, rec og nize that “[a] d ef endant may raise an ineffe ctiveness- assistance claim on direc t a ppeal when the basis of the c laim may be asce rtained from the rec ord.” Supra ¶ 21. Neither case helps the majority

. The analy sis in Phillips simply did not nece ssitate the kind of inquiry that is cruc ial to the ineffe ctiveness claim here

. The defe ndant in Phillips
, who was tried and convicted of first-degree murder and ag g rava ted arson, argued that his trial counsel

was ineffe ctive for failing to reque st an instruction on criminal damag e to proper ty as a lesser included offe nse of ag g ravated arson. Be cause , howeve r, the appellate court deter mined that the evidenc e would not have rationally supported an acquittal o f aggr avate d arson and a conviction of criminal damag e to proper ty , the court never rea ched the issue of whether trial counsel had a st rate g ic reason for failing to reque st the i n s t ru cti on. That i ssue would have posed a substantial obstacle for the defe ndant, as “ i r r es p ec t ive of whether an offense is considered a lesser-include d offense
, I llinois courts have g ener ally re cog nized that ‘[t] he decision to offe r an instruction on a lesser- included offe nse is one of trial strategy , which has

no bear ing on the competenc y of counsel.’ ” (Emphasis added.) (Interna l qu o t at i on marks omitted.) Phillips
, 383 I ll. App. 3d at 54 0

. S i m i l ar l y here
, even if it is assumed (as I deny below) that the theories expounded in the scholarly source s might have helped defe ndant’s

case , there was no rec ord develope d as to why trial counsel did not take that app roach. L ac k i n g the rele vant context, we simply cannot conclude that counsel’s perf ormanc e was defic ient. ¶ 62 As for Foster
, the majority states in its pare nthetical descr iption that the supreme c ourt

w a s a b le to ju d g e th e d e f

e ndant’s ineffe ctiveness alleg ations “re g arding an attorney ’s failures
to perf orm” (empha sis in orig inal) ( supra ¶ 21). The issue, howeve r, is not whether an ineffe ctiveness alleg ation co n ce rns an omission as opposed to a commission, but whether there is a suitable rec ord up o n which to judge counsel’s conduct. In Foster
, the defe ndant

was convicted of fi rs t -degr ee murder and sentenc ed to death beca use he killed the victim d u ring the course of an ag g ravated criminal sexual assault. The defe ndant alleg ed that h i s trial counsel was ineffe ctive during the trial beca use “he faile d t o : (1 ) p rese nt an opening statement; (2) de velop a cohesive theor y of def ense; (3) prese nt the defe nse of involuntary

-21-intox ication; (4) defe nd the ag g ravated criminal sexual assault aspec t of the prosec ution; and

(5) addre ss the felony murder issue during closing argument.” Foster
, 168 I ll. 2d at 480. The defe ndant also alleg ed that trial counsel “ err ed whe n he conc eded in closing argument that defe ndant ‘killed the woman he loved.’ ” Id. The court addre ssed and reje cted these in turn. The court was able, based on the rec ord of counsel’s actions at t ri al, to infer why counsel
acte d or failed to act as he did. For instance, with respe ct to counse l ’s fa i l ure to make an openingstatement, the c ourt said: “[T] wo of th e t h re e witnesses whom the defe nse planned to call wer e unavailable to testify at trial. The third defe nse witness ref used to testify based on his fifth amendment rig ht ag ainst self-inc rimination. Fur ther, since the defe ndant did not testify
, the defe nse prese nted no evidenc e. Under the circ umstan ce s , d efense counsel’s decision to waive openingstatement wa s not unreasona ble.” Id. at 482-83. By contra st, the rec ord here sheds no light on why trial counsel failed to utiliz e the aca demic theories that appellate counsel cites. There fore
, under Ligon
, defe ndant’s claims must be broug ht, if at all, in a collate ral c halleng e. ¶ 63 Be cause the ineffe ctiveness claim, as it was framed below, did not include an alleg ation that trial counsel was incompetent fo r fa iling to frame a defe nse along the lines of the scholarly source s t h at ap p ell ate counsel cites, no rec ord was develope d as to why trial counsel did not assume that strategy

. Strickland claims are not to be judged in the abstract and relief g rante d simply beca use a differ ent course of action might have serve d the defe ndant better. Nor is a Strickland claim nece ssarily proven eve n i f i t i s appar ent that another attorney in the same situation would have acte d differ ently

. See People v. Rodriguez
, 364 I ll. App. 3d 304, 312 (2006) (“F or purposes of Strickland ’s first prong , it is not enoug h that another l aw y er , wi th the benef it of hindsight, would have acte d differ ently than trial counsel.” ). Whil e I think it is probably misguided, in any circ umstances, to pluck aca demic theor ies from obscurity and hold a defe nse attorney responsible for not having framed a defe nse around them, it is cer tainly improper to rea ch such a conclusion without a rec ord as to why the attorney did not take that course of action. A “strong presumption” exis ts that “trial counsel had g ood rea sons for strateg ic decisions.” Lindsey
, 157 F.3d at 546. Def endant did not overc ome t h e presumption of competenc y , beca use he did not develop the ineffe ctiveness c laim in the court below. ¶ 64 I ackno wl ed ge, o f co u rs e, t hat the sparsity of the rec ord may well have been due to defe ndant’s choice to repr esent himself during posttrial proce eding s. Also, the State has not argued that the rec ord is insufficient for our revie w of the ineffe ctiveness claim. Reg ardle ss,

we c annot re sponsibly

find trial counse l ineffe ctive base d on this recor d. ¶ 65 Even if I assumed that the rec ord is adequate, I could not rea ch the same conclusions as the majority

. Of course , to assume that the rec ord is adequate, I have to make an assumption as to why trial counsel did not take the course of ac tion the majority envisions. The recor d is completely silent on this point, and I am forc ed, like the majority
, to opera te in a vacuum. Thoug h I maintain that it is improper to consider these scholarly source s without any inkling

as to why trial counsel did not herse lf consider them, I note that the majority further err s in its interpre tation of those source s. Notably
, in order to conclude that counsel was ineffe ctive,

-22-the majority had to find these source s so compelling that counsel, in failing to utiliz e them,

could not have been “func tioning as the ‘counse l’ guara nteed by the six th amendment.” Richardson
, 189 I ll. 2d at 411. I b el ieve this is a drastic and, ultimately
, unjustifiable position. ¶ 66 My first conce rn rela tes to the majority ’s methodology
, as it appea rs to have rea ched its conclusion afte r taking a relatively narr ow sample of aca demic writing s on the issue of DNA. The majority evidently considere d only those source s cited in W right
, the principal authority

on which appellate counsel relies. I find this curious. Since the majority has alre ady allowed the ineffe ctiveness issue to take a shape far differ ent from what it had in the lower court (and what the rec ord permits), I cannot imag ine why the majority would fee l an instit utional constraint to consider only W right ’s own source s. I believe that the majority
, having opened the door to scrutiny of trial counsel’s perf ormanc e in light of aca demic writing s, should have felt fre e to survey the field, and, I propose, it was the majority ’s intellectual duty to conduct a wider survey

befor e re achingsuch a ha rsh conclusion about t rial counsel’s perf ormanc e. J ust how wide a survey would have been appropr iate is difficult to say , but then such is the conundrum that c ourts fac e once they detac h themselves fr om the trial rec ord and be g in to

roam for extrajudicial source s: wher e and when does the revie w stop? Though i t i s in the
nature of aca demics to disag ree , and indeed the product rule has been (and probably still is) debate d in the literature
, the majority acknow ledg es no aca demic opinions contra ry to those of Devlin. I say “ac knowledg es” rathe r than “cites” beca use the majority has ci t ed Ka y e, who, as it happens, does not share Devlin’s hostili ty toward the product rule. I am not sure, howeve r, that the majority rea liz es wher e Kaye stands on the issue. After noting the results of the Arizona databa se study
, the majority makes this rema rk in which it quotes from Kaye: “The se finding s prompted commentar y that, if the fre quency ‘for a nine-locus matc h is
any thing like one in 754 milli on for whites, and one in 561 milli on for blacks [as some DNA experts te stify ], how can it be that a databa se as small as [Ariz ona’s with] a mere 65,493 entries pr oduces e ven one suc h match? ’ Ka ye, supra , at 155.” Supra ¶ 28. ¶ 67 Thoug h the majority does not quote further
, Kaye proce eds to answe r the question, and he defe nds the product rule ag ainst the heate d criticisms from Devlin. I mmediately following the re mark quoted by

the majority , Kaye wr ites:
“ ‘Sca ry isn’t it? ’ aske d Devlin. B. The Combinatorial Ex plosion: All -pairs Tr awls and the Birthda y Problem
This scena

rio is only scar

y if we confla

te the siz e of the databa se with the number of
compar isons being ma de to find a match. ***
* * *
*** [I ]n a trawl throug h all possible pairs in a databa se, ever y profile in the databa se is compar ed with ever

y other profile. *** [T] he databa se need not be so hug e befor e one

can expect many matches that have very small random-match probabilities. One- to-one compar isons (the testing of a known suspect) and one-to-n se arc hes (f or a c old hit) are marke dly differ ent from larg e n-to-n compar isons (the all-pairs trawls), althoug h
commentar

y confusingthe latter two ty pes of se arc hes is all too common. All-pairs trawling

–an art i fi cial form of sear ching that is not used in criminal

-23-investi gati ons–is analog ous to the famous ‘birthday problem.’ The problem is to deter mine the minimum number of people in a room such that the odds favor there being at least two of the m who wer e born on the same da y of the same month. ***
*** [A] prec ise calc ulation shows that it takes only 23 people befor e it is more likely than not that at least two people in the room share a birthday

. The actua l number is this small beca

use the matching birthday can be any one of the 365 d ay s in the y ear and b eca use the number of compar isons among birthday scale s as n with an incre as i n g 2 number of n pe ople in the room. Thus, all-pairs trawling in databa ses makes it much less surprising to co m e ac ross partial (or even full) matches among unrelated peo p l e than in ordinary case work. J ust think a bout how many distinct pairs can be formed, and then compar ed, with the ‘mere 6 5
, 4 93 entries’ in the Ariz ona database. *** I f t he chance of any nine-locus mat ch fo r any pair wer e ‘one in 754 milli on,’ then the expected number of nine-loc u s m atches [9 ] would be not just one. I t would not even be 90 *** or *** 122 ***. It w ould be (1.53 x 10 ) / (7.54 x 10 ) = 2,304 nine-locus matches. I t seems as if random-match probabilities 1 2 8

are even sma ller than the the oretica l estimates.” Ka y e, supra , at 155-57. Kaye adds this qualifier :

“ B ut th a t c o n clusion cannot rest on these particula r numbers. The theore tical ra n d o mmatch probability is not 1 in 754 milli on. That estimate perta ined to Cauca sians with the
g enoty pe seen in the first nine-locus match back in 2001. Eac h p rofile has its own random-match probability in eac h population g roup. A detailed study would need more than the summary statistics to asce rtain whether the observe d numbers of partial matches exceed those predic ted by the basic product rule for unrelated individuals. To acc ount for the vast number of possible pairing s, we could ref er to the individual profiles to compute the diffe rent RMP [ random match probabilities] for e ach pa ir of prof iles and der ive an

ex p ec t ed number of partial matches. Or, we could use a more eff icient proce dure that

mere ly require s the num ber of loci at which all the pairs match and the number of loci at which t h ey p ar tially match. I n principle, more detailed studi es wit h individual-level data on profiles and relatedness (or suitab l y d etailed counts) might sug g est that the theore tical RMPs are just fine, are too high (bene fitting defe ndants), or are too low.” Id. at 158. ¶ 68 Ka y e t h en addre sses the objection that exis ting offe nder databa ses are inadequate fo r

rese arc h beca

use they are not a pure ly

random samplingof the population:
“The choice
, howeve r, is not betwee n ideal rese arc h databa ses and worthless, motley assemblies of samples. The allele- fre quency databa ses are t h em s elves convenie nce samples with less-than-pe rfe ct g roup classifications, but they still have a place in producing rea sonable estimates of allele fre quencie s and in verify ing the assumptions of statistical independe nce. L ikewise, the offe nder databa ses could play a role in chec king

on basic product-r

ule (and more sophisticated) calc ulations of random-m at ch

T his was, at le ast as of 20 0 1
, t h e r e p ort ed pro bab il it y of a nin e- loc i m at ch among 9 Cauc asi ans

.
-24-probabilities. It is therefore worth describing the s tudies that already hav e bee n conducte d. As a whole, they do not cast much doubt on the entrenc hed methods f o r es timating match probabilit ies. Howeve r, the exis ti n g re s ear ch is limit ed in scope, and further rese arc h could re inforce or under

mine this conclusion.” (Emphasis adde d.) Id. at 160. ¶ 69 Kaye then descr ibes sev er al s t u d i es o f the Arizona databa se that wer e conducte d to addre ss the number of matching pairs: “Usingthe basic product rule with an estim ated uniform single -locus match f reque ncy of about 1 in 14, Charles Br enner repor ted that the excess number of nine-loc us partial matches could be explained by a very small deg ree of depende nce. A more detailed, but als o unpublished, analy sis by Steven My ers rea ched the same conclusion

. M y er s employ ed the aff

inal model for a structure d population and considere d some values for the proportion of full siblings in the Arizona databa se. Br uce Weir also found no excess in the observe d number of partial match es in Arizona. A more complex study by L aure nce Mueller used simulations with vary ing numbers of subpopulations, deg ree s of population structur e, an d p roportions of siblings and pare nt-child pairs in the Arizona databa se. By adjusting these para meters, he was able to fit the numbers of observe d ninelocus partial matches or ten-locus partial matches with his model–but not both at the

same time. To put it another way , all his simulations wer e consistent with 150 nine-locus matches and 15 ten-locus ones. The actua l numbers of nine-locus and ten-locus matches in the Ariz ona database, it will be reca l l ed
, we re 122 and 20, respe ctively

. Thus, there

wer e 20% few er nine-locus matches and 25% more ten-locus matches than a theore tical model with product-r

ule RMPs would predic t. These discrepancie s may be statist ically signifi cant, but they present a very different picture than the original portrayal of inexplicably ‘huge’ numbers of partial matches in Arizona. The studies of the few numbers reported in Arizona do not demonstrate that the theoretical computations yield absurdly small estimates of the t r u e probabilit ies of a match among unrelated individuals. ” (Empha sis added.) Id. at 161-62. ¶ 70 After rec iting the finding s o f o t h er s t u d ies, Kaye conclude s that “the rese arc h to date
g ives littl e rea son to doubt the adequa cy of [ex isting models] for computing multil ocus STR fre quencie s.” Id. at 164. ¶ 71 I have included such larg e extracts for two rea sons. First, I want to show that, whateve r the m ajority intended to imply in citing Ka y e, he himself is not one of the “leg al s cholar s” who have come “to d o u b t t h e alleg ed low probability of encounte ring a random, partialprofile ‘match’ in the g ener al population.” Supra ¶ 27. At least, such a char acte rization needs qualification. As for the rema ining “schola rs,” the majority leave s them anony mous. Devlin is quoted by Kaye, b u t the majority does not explain the basis of Devlin’s criticism. This leave s , t h en, the databa se studies themselves, but their import is not self-e vident, and the
extracts from Kaye quoted above demonstrate that the signific ance of those matches is open to debate

. Nonethele ss, the majority sug g ests that these studies could have been used by trial counsel to sug g est that “Ape r’s fig ures, g iven that they wer e based on only a partial-pr ofile
compar ison, might be inacc urate .” Supra ¶ 28. Since the majority cites no basis for believing

-25-that those databa se studies underc ut statistical conclusions like Aper ’s (Ka y e him s el f is mostly supportive of the product rule), it has shown absolutely no cause for g oing to such an extreme as to c onclude that trial counsel’s failure to inc orporate the databa se studies into a line of def

ense amounted to a

fundame ntal failure to subject the State’s c ase to a dversa rial testing. In order to r eac h such a harsh conclusion, the majority would have to tre at Aper as essentially a flat-e art

her whose opinions desper ately neede d corr ection by clea rly established scienc e that would be patently obvious to trial counsel. Yet no source cited by the majority supports this perspective. ¶ 72 My second purpose in quoting at leng th from Kaye wa s t o d em o n s t rate the hig hly technica l nature of his topic. I f it was difficult to navig ate these passag es, imag ine dige sting the entire 25 pag es of text and footnotes and then moving on to supple mental rea ding such as the sourc es that Kay e cites, any source s that cite him, and any other re levant sourc es on the topic. This ring s of the work of an aca demic, but it is also t h e work, as the majority

conce ives it, of an I llinois defe nse attorney prepa ring for trial in an I llinois prosec ution wher e inculpatory DNA evidenc e is a nticipated. Actually
, there is the threshold issue of how trial counsel would have run acr oss Kaye’s article in the first instance, since W right had not been decide d in Aug ust 2009 when defe ndant was trie d. Ihave not found one published case , in
any jurisdiction, citing Ka y e’ s article

. Trial counsel would have had to find this obscure article outside judicial source s, along with whateve r other works (in whateve r fields of study) the majority

believes w ould have c ompleted counse l’s rese arc h. ¶ 73 This expectation is simply unrea sonable. Certainly
, trial counsel was expected to know what manner of DNA evidenc e I llinois courts permitted as of the August 2009 trial. At that time, the supreme court’s decision in Miller
, which rec og nized the reliability of the product rule for deter

mining the statistical significanc e of a DNA match ( Miller
, 173 I ll. 2d at 189)

was still the law in I llinois (and rema ins so today ). Certainly
, trial counsel was expected also
to know how to mitigate the impact of statistics derive d acc ording t o t h e product rule. Counsel did so by eliciting Aper ’s acknow ledg ment that his population se t did not a ccount for relatives of defe ndant and that, while an identical twin would match at all 13 loci, a relative could match at few er than 13 loci. The majority essentially dismiss es the import of this inquiry
, but, ironically
, the majority seems out of alig nment here with the very literature it has set up as the s t an d ar d o f competenc y

. See Kaye, supra , at 158 n.75 (“The family relationships of the individuals whose profiles are in a d at ab as e are potentially important. Assuming that e veryone is unrelated ca n result i n undere stimates of the e x pecte d numbers of m atche s. More partial matches would be li kely beca use close r elatives will match more often than w ill the unrelated individuals to whom the theore tical RMPs apply .”). ¶ 74 In my view, counsel could not be expected to press a line of defe nse that questioned the basic assumptions of the product rule. Those assumptions had been questioned in the 1990s, but the debate was dwindling by 1996 when this court decide d Dalcollo

. In that decision, we sketche d the history

of the c ontroversy : “[T] he deba

te ce ntere d on the possibilit y of subg roupingamongpopulations. *** Riding t he crest of this al l eg ed ‘bitt er debate’ [citation]
, some courts have rejected testimony on probability statistics on the g round that the calc ulations wer e not g ener ally

-26-acc epted in the scienti fic community

. [C itations.] Other courts, including some in I llinois
, have rema

nded the case for further considera tion on whether the ceiling principle, a conser

vative method of estimating probabilities that attempts to acc ount for population subgr ouping, is g ener ally acc epted. [Citations .]
We need not decide whether these case s wer e proper ly decide d. Even if the fore g oing publications ignited a ‘bitter debate ’ in the scientific community
, and thus demonstrated that the calculation of probability statistics was not g ener ally acc epted in the s cientific community
, the debate has clea rly calmed in the last sever al y ear s. This calming is attributable to two deve lopments not considered by the fore g oing c ases. The first is the rec og nition by scientists that more conser vative methods to calc ulate statistical probabilities do not cre ate a corr esponding re du ct i o n in random match probability calc ulations. The NRC Report rec ommended that scientis ts use the ceiling principle, as opposed to the product rule, to calc ulate statistical probabilities. Howeve r, Eric L ander
, an ear ly critic of the use of probability statistics, as well as a coauthor of the NRC Report, and Br

uce Budow le, one of the princi p al ar chitects of the FB I ’s DNA
prog ram, have observe d that the use of this more conser vative method does not cre ate a

corr espondingreduc tion in random match proba bility calc ulations. [ Citation.] The second dev el o p m ent is the FB I ’s completion of an exhaustive worldwide
p o pulation survey , a survey which was rec ommended by the NRC Report. [C itati o n

. ] T h e study rebutted the assumption that popu l at ion subg rouping aff ecte d DNA probability estimates t o a defe ndant’s disadvantag e. [C itation.] *** Ba sed on these finding s, the study conclude d that the esti mate of the likelihood of occur renc e of a DNA profile derive d by the curr ent prac tice of employ ing the product rule and u s i n g g ener al population databa ses is reliable
, valid, and meaning ful, without fore nsically signific ant conseque nces. [Citation.] ” Dalcollo , 282 I ll. App. 3d at 959-60. ¶ 75 We conclude d that the debate
, at least in extrajudicial circ les, over the product rule had died down. Id. at 960. In Miller
, decide d the same month in 1996 as Dalcollo
, the supreme court also noted that the controve rsy over the product rule was “dissipating” and that the

conce rns about subg roups were not “borne out by empirica l studies.” Miller
, 173 I ll. 2d at 188-89. ¶ 76 The aca demic debate over the product rule was materia l to the decisions in Dalcollo and Miller
, as those courts wer e deciding the g ener al g ateke eping question of whether statistics derive d from the product rule wer e reliable enoug h for admission in I llinois courts. Now that Miller has been decide d, trial courts need not conduct Frye hear ings revisiting the reliability of the product rule. See People v. Hicke y , 178 I ll. 2d 256, 279 (1997) (upholding
, based on Miller
, the trial co urt’s denial of a Frye hear ing on the product rule); see also People v. Basler , 193 I ll. 2d 545, 551 (2000) (“ Where *** a scientific method has bee n shown to be
g ener ally acc epted, a Frye test is no longe r nece ssary eac h time the State s ee k s to use evidenc e obtained by

that method.”). The majority stresses that what it ex pecte d from trial counsel wa s simply

more vig orous advoc acy , not an assault on the pr oduct rule itself. A s I have noted, howeve r, t he only scholarly op i n i o n t h at t h e majority cites as a guide for how
t ri al counsel should have conducte d a defe nse is that of Devlin, who likens the statistic al

-27-derivations of the product rule to presc ientific tripe. The majority specifie s no more moderate

approa ch for counsel to have taken. Strickland does not require counsel to anticipate future developments in the law ( People v. Ford
, 228 I ll. App. 3d 212, 216 (1992 ))
, m uch less to advocate for them

. Competent counsel under Strickland must be conver sant in I llinois criminal law but need not r ang e the scholar ly literature for c utting-e dg e deve lopments that might favor the defe ndant if incorpora ted into I llinois law. The journals and law revie ws are

cra mmed with theories by which any g iven attorney ’s perf ormanc e might be questioned. The majority would have prac titioners be aca demics, and omniscient aca demics at that. I believe that the majority

is taking f

ar too much a dvantag e of hindsig ht. Strickland cautions us that it is “all too te mpting for a defe ndant to se cond-guess counsel’s assistance afte r conviction

or adver se sentenc e, and it is all too easy for a court, examining counsel’s defe nse afte r it has proved unsucce ssful, to conclude that a particula r act or o m i s s i o n of counsel was

unrea sonable.” Strickland , 466 U.S. at 689. ¶ 77 The majority also does not propose how trial counsel was to make use of the literature critica l of the product rule . L ikewise, appellate counsel, though criticizing trial counsel for “fa il[ ing] to prese nt evidence to the jury” as to what “experts have sa id,” does not propose how such evidenc e would have clea red the g ener al hear say bar ag ainst admission of treatises and journals as substantive evidenc e ( Jack son v. Reid
, 402 I ll. App. 3d 215, 235-36 (2010))

. Counsel could have cross-e x amined Aper on the data and opinions in the literature
, but only by first establishing the author(s) as reliable authority

. Darling v. Charleston Co mm u nity Mem orial Hospital
, 33 I ll. 2d 326, 336 (1965). Even then, however, the data a nd opinions would be “admi[ssibl e] as impeachme nt but not as s ubstantive evidenc e.” W alski v. Tiesenga , 72 I ll. 2d 249, 258 (1978). The majority cautions t hat i ts holding is not that trial counsel should have “introduce d those specific source s into evidenc e,” but that the source s “re flec t[ ] m ere ly

the exis tence of various arguments that counsel could have used.” Supra ¶ 21 n.2. L ater , howeve r, the majority rema rks that the cited literature “could be ref ere nced
to formulate *** arg

uments.” (Emphasis added.) Supra ¶ 31. Thus, the majority equivocates

on whether it would have been possible for trial coun s el t o m ak e such arguments at trial without incorpora

ting opinions and data from the literature and, hence
, encounte ring the very evidentiar y hurdles I have noted. For instance, how wa s t ri al counsel to ref ere nce the databa se studies? The majority is silent on the issue. ¶ 78 Appellate counsel also argues that trial counsel should have prese nted her own expert to testify “that the statis t i ca l ca l culation that the State relied on was seriously flawe d.” The majority claims that there was “viable *** evid en ce ” ( supra ¶ 25) that trial counsel could have produce d, but does not expressly fault trial counsel for failing to prese nt an expert (and indeed does not even addre ss this aspec t of appellate counsel’s ineffe ctiveness claim). Since, howeve r, appellate counsel has not identified an expert who was available to g ive the testimony that appellate counsel descr ibes, this aspect of the ineffe ctiveness claim fails for lack of development. See People v. Todd
, 178 I ll. 2d 297, 330 (1997) (“de fenda nt has not shown whether any expert was av ai l ab l e” who could have g iven the testimony defe ndant claims trial counsel should have prese nted); People v. Bauer
, 393 I ll. App. 3d 414, 424 (2009) (“e ven if the defe ndant’s theory provided a valid defe nse for her actions, we note that the defe ndant prese nted no evidenc e that such an expert in fac t exis ted who would testify in

-28-support of h er t h eory

. Indeed, appellate counsel, when repr esenting the defe ndant on her

posttrial motion, did not submit an offer of proof as to how an e x pert would have testified

on her behalf

. As this court will not speculate as to whether such an expert could have been found, we will not find trial counsel ineff ective on this basis.”)

. ¶ 79 Today ’s decision has far -re aching conseque nces g iven that this case involved an entirely routine prese ntation of DNA evidenc e. There is no cre dible way to distinguish this case from the hundreds that are tried in I llinois eac h year and involve the admission of DNA evidenc e. Thoug h there are “countless way s to p ro vide eff ective assistance in any g iven case ” ( Strickland
, 466 U.S. at 6 8 9 ), I fea r that the clea

r signa l of the majority ’s decision is that defe nse counsel i n ev er y DNA case hence forth must tailor its approa ch to the scholarly

source s the majority cites. Thus, the majority
, I believe, has not heede d Strickland ’s admonition that “intrusive post-trial inquiry into attorney perf ormanc e or of detailed guidelines for its evaluation would encour ag e the prolifer ation of ineffe ctiveness challeng es.” ( Emphasis added.) Id. at 690. ¶ 80 Notably
, the majority does not challeng e my asser tion that Kaye simply does not hold the opinions that the majority implies he holds. Nor does the majority contest my asser tion that, aside from Devlin’s outrig ht dismiss al of the product rule (his rea sons for which the majority does not d ev el o p ), t he majority has failed to cite any scholarly opinion that underc uts the product rule. Instead, the majority cautions that its “asse ssment of counsel’s perf ormanc e is
not tied to an y p ar t i cu lar aca demic source or compilation of source s” and that the cited literature comprises simply “examples of resour ces that could be ref ere nced to formulate ***
arguments.” Supra ¶ 31. The majority sug g ests that the literature mere ly confirms a line of defe nse that should have been obvious to trial counsel. He n ce , acc ording to the majority
, “ther e is no question” that a rea sonably competent attorn ey fa ce d with inculpatory DNA

ev idence would argue “that a DNA compar ison based on few er than 13 loci mi gh t b e unreliable or that the partial profile rec overe d might not be uncommon.” Supra ¶ 31. To the extent that the majority is sug g esting here that trial counsel should ha ve challeng ed Aper ’s statistical derivations, I note that the majority specifie s no way in which counsel could have done so short of challeng ing the presuppositions of the product rule and thus raising an issue of admissibili ty that surely would have been reje cted by the trial court with a simple citation
to Miller

. I t was cer

tainly not from the post-Miller case law that counsel could have lear ned h o w t o make such a challeng e. Rather, it was from the “obscur e aca demic article s ” t h at , despite what the majorit y say s, have now become the “base line require ment for eff ective
repr esentation” in DNA ca ses ( supra ¶ 31). ¶ 81 I rec og n i z e t h at t h e majority has criticisms of trial counsel’s perf ormanc e besides her fa i l u re to challeng e Aper on the soundness of the statistics he offe red. First, the majorit y makes refe renc e t o “o n e l ega l scholar [ who] has explained that matching at fewer than 13 loci will exc lude a suspec t if it can be deter mined that there is no match at the rema ining available loci.” (Emphase s added and in orig inal.) Supra ¶ 26. The scholar is Kaye, and the majority g oes on to quote a passag e from his article

. In what follows I highlig ht that passag e and provide its contex t: “The commotion beg an af ter staf f fr om the Arizona Depa

rtment of Public Safety ’s DNA labor atory

posted an announce ment of ‘A Nine STR L ocus Match B etwee n Two

-29-Appar ently Unre lated Individuals’ at an annual scientific meeting on DNA identification methods in Phoenix in 2001. I t is not clea r from published acc ounts how this nine-locus match–betwe en a white a nd a blac k man with felony convictions–was discove red. The databa se rec ords consisted of a list of the alleles at thirteen distinct loci. W hen the same thirteen loci can be typed in a cr i me -s ce n e sample, a mere nine-locus match will not generate a suspect. In fact, the discrepancie s in the full profile at the other four loci will

exc lude a suspect as a possible source of crime- scene DNA. But even partial matches at nine loci are almost never encounte red in case work. Indeed, acc ording to one repor t, the RMP for the matching nine-locu s genoty pe in Arizona was ‘1 in 754 milli on in Ca ucasia ns, 1 in 561 billion in Afric an Americ ans, and 1 in 113 trillion in Southwest Hi spanics.’ The discovery of such a match in the state databa se surely seemed anomalous.” ( Emphasis added.) Kaye, supra , at 153-54. ¶ 82 I do not see how the majority can view the highlig hted materia l as an “explanation” whe n Kaye offe rs no substantiation for his asser tions. Thoug h it is simply on faith that the majority
g ives the asser

tions cre dence
, Kaye’s brief vitae in his article does not sug g est the cre dentials of a DNA expert. As the State demonstrates throug h its citation to multipl e case s upholding convictions based on less than a “mer e nine-locus match,” courts of law appea r not to have taken Kaye’s view as to the kind of match that is probative of g uilt. The majority
, howeve r, does not rega rd t h ese case s as simply inconclusive on the issue, but g oes so far as to call them “irre levant.” Supra ¶ 30. The m aj o ri t y , I think, has no g round for cre diting the unsupported word of a leg al sch o l ar while outrig ht dismiss ing the holdings of courts throug hout our country

. ¶ 83 I also do not see the pertinenc e here of Kaye’s rema rk that “the discrepancie

s in the full
p r o f i l e at the other four loci will exclude a suspect as a possible source of crime-s ce n e DNA.” (Emphasis added.) Kaye, s u p r a , at 153-54. By “discrepancie s,” Kaye means varia nces in information betwee n the loci mapped from the suspect’s s am p l e and the loci mapped from the crime- scene sample. Aper ’s testimony makes clea r, howeve r, that there can be no varia

nce or “discre pancy

” wher e there is no information at a particular l o cu s ; the suspect is neither included nor excluded on the basis of that absenc e. (F or instance, Aper said of one locus: “Since there is no information in my crime scene profile at this location, no compar isons rea lly happen he re.” ) Ape r testified that the sample from the window y ielded information at only

7 of 13 loci. As the majority acknow ledg es, Ape r wa s equivoca l about whether there was a

corr espondenc e at the se venth locus. Ape r said: “This D13 [seventh] location I have a ty pe 10, and he has a 1013. So he’s g ot some. This is one ty

pe that’s consistent with this profile, but I did not observe the 13 there

. But the problem is when we g et low level DNA samples, sometimes we have information below, let’s sa

y , our threshold for analy sis. *** So this information was strongenoug h for me that Icould not exclude him a s a contributor beca use it’s possible that a 13 is at this location, but it ’s below our threshold.”
What is clea

r, howeve r, is that there was no varia nce or “discre pancy” at the rema ining six loci mapped from the crime- scene sample, beca use Aper was not able to g et information on them. Thus, it is not clea

r what use trial counsel could have made of Kaye’s asser tion about

a ful l 1 3 -l oci map of the crime- scene DNA wher e there is information at eac h locus.

-30-Although the majority acknow ledg es that trial counsel stressed for the jury that there was no

information at sever al loci, the majority holds that counsel should also have “deve lop[ ed] for the jury that the missing loci could be critica l and, in fac t, exculpatory .” Supra ¶ 26. This would have been needless speculation. The most critica l fac t that the j ury needed t o know about the missing loci was that they wer e neutra l as to defe ndant’s g uilt. This fac t was fully
conveyed throug h Aper ’s testimony

. ¶ 84 The majority also finds two aff irmative misstep s i n t ri al counsel’s closing argument. First, the majority notes that counsel rema rked that Aper found a “match” at seven loci when Aper (as t h e majority puts it) “conc luded only that defe ndant could not be excluded as a contributor, not that defe ndant was a match ” (empha ses in orig inal). Supra ¶ 26. The majority assumes that there is a differ ence betwee n a nonexclusion and a “match,” and that the l atter is more incriminating, but the record does not bear t h i s o u t

. Ap er never used t he word “match” or “nonmatch” to ref er to the results of his compar ison, and the majority cites 1 0

no other source from which the jury might have asce rtained a differ ence between a nonexclusion and a “match.” In its own cl o s i n g argument, the State rema rked that Aper found that the crime- scene sample “match[ed]” defe ndant, but the State did not elabor ate on the meaning of the term. The majori t y cl aims that I am wrong ly attributing to the jury an ability to “par se out the potentially nuance d distinction ” b et we en a nonexclusion and a match. Supra ¶ 34 n.6. My point is that the evi d en ce at t rial g ave the jury no rea son to distinguish betwee n the two conce pts. L ikewise, the rec ord g ives the majority no rea son to distinguish betwee n the t wo. The majority
, rathe r, appears to be u t i l i zing i ts own personal

conce pt of “matc h,” which, I believe, is not an a

ppropriate source

. ¶ 85 Second, the majority n o t es t h at trial counsel misstated the evidenc e by inferr ing f rom Aper ’s testimony that (in counsel’s words) “a t h ird of the g ener al population would have simil ar DNA ty

pings that wer e found from the window.” This indeed was a misint erpr etation of Aper ’s testimony
, but “[t] he issue of ineffe ctive assistance of counsel is to be deter mined from the totality of counsel’s conduct, not from isolated incidents” ( People v. Spann
, 332 I ll. App. 3d 425, 430 (2002))

. On the whole, trial counsel’s advoca cy was ag g ressive and sound. She moved for a direc ted verdic t, stressing not just that the State had only DNA evidenc e that d ef en dant committed the crime, but also that the quantity of DNA rec overe d from the window did not meet the cr ime lab’s pre fer red minimum level: “The only evidenc e is the one swabbing or the swabbing from the window. And the DNA expert testified that althoug h [defendant] could not be excluded, the standard that he

re ce i v ed was below the minimum threshold that they usually require

. I believe it wa s three nanog rams. F or those re asons, I am *** re questinga dire cted ve rdict.” ¶ 86 In closing argum en t , t ri al counsel stressed in g reater detail what was lacking in the S t ate’ s case

. After noting that there was no direc t evidenc e of defe ndant’s g uilt, couns el
argued that the circ umstantial evidenc e was inadequa te. Specifica lly
, counsel noted that the police found n o n e o f t h e stolen proper ty in defe ndant’s possession and that there was no footprint or fing erpr int evidenc e linking defe ndant to the scene

. R ega rd ing the DNA

He di d, a t o ne p oin t, r ef

erto th e c om

par is on p roc ess it sel f a s “ m at ch[ ing].” 1 0

-31-evidenc e, counsel did not repe at her point, which she made in arguing for a direc ted verdic t,

that the quantity of the samples did not meet the crime lab’s pref err ed minimum amount, but she did highlig ht other we ak n es s es in the DNA evidenc e. First, she made the insightful observation that though, acc ording to Aper
, DNA is more likely to be shed the more tightly

one handles an object, Aper excluded def en d an t as t he source of the DNA on the

scre wdriver
, the perpe trator’ s appar ent means of forc ing entr y

. Counsel may well have believed, soundly
, that an attack on Aper’s m et h o d o l og y would be risky beca use it might ultimately

call into doubt his ex culpatory conclusions about the sc rew driver. ¶ 87 Second, counsel noted that Aper could not derive information from all 13 loci, but f ound

a “match” at only 7 of 13 loci. Finally
, co u nsel rec alled Aper ’s acknow ledg ment that, in
g ener ati n g h is statistical probabilities, he did not acc ount for defe ndant’s rela tives, whose DNA profiles could corr espond with his at some of the 13 loci. To my mind this was, to use the majority ’s phrase
, “a basic ar gu ment that the few er loci available for testing the less

cer tain the re sults mi g ht be.” Supra ¶ 31. ¶ 88 Finally
, I note th at As s i s t an t P u b l i c De fe n d er Ed L ight testified that trial counsel discussed her trial strateg y with him and that he did not “disag ree ” with it. A defe nse attorney ’s see king of advic e fr om fellow prof essionals sug g ests car e and dilig ence that are rele vant to the Strickland inquiry

. See, e.g. , Boyk ins-W hite v. State
, 701 S.E.2d 221, 226 (Ga

. App. 2010). “A defe ndant is entitled to rea sonable, not perf ect, repr esentation ***.” People v. Fuller , 205 I ll. 2d 308, 331 (2002). Trial c ounsel clea rly met this threshold. ¶ 89 I conclude that neither appellate counsel nor the majority has identified any rea listi c way by which trial counsel, either throug h additional cross-e x amination of Aper or introduction of expert testimony
, could have more vigor ously challeng ed the DNA evidenc e in this case

. I note that there was one avenue available to trial counsel that neither appellate counsel nor the majori t y rec og nizes. Since appellate counsel and the majority stake so much of their claims on the discoverie s of matching pairs in state DNA databa ses, I am surprised that they have not considere d whether trial counsel should have soug ht a court o rd er direc ting the State Police to sear ch the I llinois databa se for the profile that Aper g ener ated from the DNA
matter recove red from the window. See 725 I L CS 5/ 116-5(a ) (West 2006) (“ Upon motion by a defe ndant char g ed with any offe nse wher e DNA evidenc e may be m at eria l to the defe nse investigation or rele vant at trial, a court may order a DNA databa s e s ea rc h by the Depa rtment of S tate P olice.”)

. Possibl y , this opti on never occur red to appellate counsel or the majority only beca

use the issue was never raised during the posttrial proce eding s on the ineffe ctiveness claim. Neither
, howeve r , does much of the curr ent ineffe ctiveness claim have

a b asi s in the record. I think it is no less arbitra ry and artificial t o specula te as to why t ri al counsel did not use the scholarly opinions and data that defe ndant cites for the first time on appea l than it is to conjec ture as to why trial counsel did not reque st a databa se sear ch. (Thoug h if I had to g uess, t rial counsel might not have asked f or a sear ch because she was fea rful that def

endant would be the only match.) The rec ord on both issues is nonex istent.

-32-¶ 90 B. Counsel’s Conduct B efor e Tria l

¶ 91 1. Introduction ¶ 92 Trial counsel’s repr esentation at trial was competent, but a full and fair Strickland inquiry require s us to examine the totality of her repr esentation. “T h e i ssue of incompetenc y of counsel is alway s to be deter mined from the totality of counsel’s conduct.” Mitchell
, 105 I ll. 2d at 15; see also Montgomery
, 846 F.2d at 412 (“Counsel’s perf ormanc e must be evaluated in view of the totality

of the c ircumstance s ***.” (c iting Strickland , 466 U.S. at 689)). ¶ 93 The first point to consider, in this wider look at counsel’s conduct, was the number a nd
nature of the c harg es def

endant f ace d. ¶ 94 In addition to the felony char g ed in this case , defe ndant fac ed five other felony char g es and one misdeme anor c harg e:

Arre st Case No. Charg e (this case ) 8/15/07 08 CF 1692 residential bur g lary

6/4/08 08 CF 2112 residential bur g lary
8/27/08 08 CF 4410 residential bur g lary 8/27/08 08 CF 4411 possession of a stolen motor vehic le
9/19/09 08 CF 3722 residential bur g lary 9/19/08 08 CM 7289 criminal trespa ss to land
10/16/08 08 CF 4658 theft ¶ 95 At least one of the residential burg laries was committed on or about September 16, 2008, while defe ndant was on bail for this case

. I f convicted of both the curr ent o ff en s e an d the September 16, 2008, residential burg lary
, defendant fac ed potential extended terms/consec utive sentenc es of 12 to 60 y ear s in the I llinois Depa rtment of Correc tions. 730 I L CS 5/5-8-2(a )(3) (West 2006). Given the number and the seriousness of the char g es fac ing defe ndant, trial counse l beg an to pursue ple a discussions with the State. ¶ 96 Def

ense counsel’s appropr iate pursuit of plea neg otiations is a f a c tor in judgingcounsel’s perf ormanc e under the Strickland standard. People v. Palmer
, 162 I ll. 2d 465, 477-78 (1994). “[T] he conce pt of plea barg aining and its attendant benef its for both parties has been

rec og nized as a necessar

y element of criminal j ustice admini stration.” Id. at 477. Not only is plea bar g aining permitted under Strickland , there is a constitutional duty to plea bar g ain “whe re the fac ts and circ umstances of the offe nse and its proof, as well as an assessment of available fac tual and leg al defe nses, would lead a rea sonably competent counsel to be lieve that there is a rea sonable possibili ty of a result favor able to the acc used throug h the proce ss of plea neg otiations.” Id. ¶ 97 The evidenc e in ag g ravation at sentenc ing shows that the State had compelling evidenc e ag ainst defe ndant as to two residential burg laries aside from the curr ent offe nse. (It is unclea r from the r ecor d whether

these burg laries we re char g ed while the prese nt c ase w as pending below.) First, Detec tive Eric Swenson testified that, in the course of investiga ting a May 14, 2007, burg lary at 2611 Har lem Boule vard in Rockford, he rec eived from the State crime lab

a repor t noting that DNA had been rec overe d from the window by which the perpe trator

-33-appar ently g ained entry and that a sear ch of the DNA data b as e re v ea led a match to

defe ndant’s prof

ile. ¶ 98 Second, Detec tive J ames Gallagher testified that, betwee n September 13 and 16, 2008,

a series of burg laries wer e repor ted in the Parker Woods subdivision in Rockford. One of the
repor ted burg laries occur

red at 532 Euclid Avenue on September 16, 2008. Among the items
repor tedl y t ak en from 532 Euclid Avenue wer e food, jewelr y , and a flat-pa

nel television. Gallag her testified that the office rs who first responde d to the E u cl id Avenue burg lary

rec overe d a flat-pa

nel television in the woods acr oss the street. On S ep tember 17, 2008, Gallag her went to the are a for further investigation. He spotted defe ndant, who matched the descr iption of a suspect who was seen in the ar ea. Gallagher spoke to defe ndant, who said that he was stay

ing at the Trave ler Motel. When Gallagher arr ived at the motel about an hour later, the manag er confirmed that defe ndant had been staying the re but left t hat ni g ht afte r depositi n g a wh i t e gar

bag e bag in a trash bin. Gallagher recove red the bag and showed its
contents to the residents of 532 Euclid, who identified the food, collector coins, and jewelr y inside the bag as the items that we re t ak en from their home. The motel manag er g ave Gallag her a possible a ddress wher e defe ndant and his g irlfriend, Sherry Swewait, might be found. Gallag her went to the addre ss and spoke with defe ndant an d S we wait. Gallag her testified about his conve rsation with defe ndant:
“I asked him a

bout the the [ sic ] jewe lry and the items rec overe d [from 532 Euclid], and he said he d i d n ’t know nothing about them; then I spoke to him, told him I was

awa re that there wer e a couple other case s that I knew there was some DNA rec overe d, and he w as listed as a suspect in, and he made a comment t o me t hat t here ’s no rea son y ou should ta lk to me beca use of the other two case s beca use he may be spending most of his life or the r est of his life in prison when he g oes to trial on the ca ses.” ¶ 99 Gallag her then spoke to Swewait, who repor ted that defe ndant “had co m e b ac k with

some coin pouches” and mentioned a television that wa s h i d d en in the woods. Swewait mentioned to Gallag her that defe ndant had been selling stolen items t o “Nate.” Gallag her
went to the addre ss that Swewait g ave for “Nate” and there spoke to a Nate Hoper
, who said that, on the night of September 16, 2008, d ef en d an t came to Hoper and said that he had a television he wa n t ed t o s ell to Hoper and that it was hidden in the woods. Def endant took Hoper to a wooded a

rea near 532 Euclid but no television was there

. ¶ 100 As the r e w a s c o mp e ll in g e vidence ag ainst defe ndant on these two burg laries, trial counsel

was rig ht to seek a plea barg ain that encompa ssed both the curr ent offe nse and the other pending case s. The pretria l rec ord, as well as the evidenc e adduce d during posttrial
proce eding s, demonstrates the following : (1) trial counsel secur ed a favor able offe r, namely
, a prison ter

m (25 to 30 y ear s) in the lower ha lf of the r ang e (12 to 60 year s) that def endant would fac e if convicted of the curr ent off en s e and of one or more additional residential burg laries if committed while he was on bail for the curr ent offe nse; (2) defe ndant ultimately reje cted the offe r, fore closing all further barg ainin g; (3) defe ndant told counsel that he planned to take the stand, confe ss to the crime, and ask the jury for forg iveness; (4) defe ndant vacillated on this plan, but finally abandone d it only afte r the State rested its case on the day of trial; (5) defe ndant was convicted and sentenc ed to 30 y ear s–in the lower half of the rang e of prison time that defe ndant likely would have been fac ing ultimately ; and (6) the rema ining

-34-pending char g es wer e dismiss ed. When considere d i n view of the sentenc e that defe ndant

might have receive d if the remaining charg es were not dismis s ed an d he was convicted of

one or more additional residenti al b urg laries (which was likely g iven t he evidence ag ainst him), counsel’s pe rfor

mance was, ove rall, re asonably eff ective.

¶ 101 2. Fur ther B ackground ¶ 102 I set forth the rele vant bac kg round. These fac ts are r eleva nt both to thi s discussion and the discussion, in Part I Ibelow, of the Strickland prejudice prong

. ¶ 103 On J anuar

y 22, 2009, the parties repor ted to the court that there wer e “some neg otiations

on this case ” as well as some outstanding discovery that the State would be furnishing

. The

case was continued to Fe bruar y 4, 2009, at which time the parties reque sted a “30-da y date for a possible plea.” By ag ree ment of the parties, on Fe bruar y 18, 2009, the trial court enter ed

an order rele asing defe ndant into the custody of Swenson and Gallagher on Fe bruar y 18 and 19, 2009, “for purposes of investigation.” On Marc h 4, 2009, trial counsel re p o rt ed to the court that the parties “had anticipated having a plea a g ree ment” but that def endant wanted “to set the–the case for a trial.” Trial counsel informed the court that, beca use of the potential
sentenc e fac ing defe ndant, his de cision was “over her advice .” The State then withdrew its offe r. ¶ 104 At n o t i m e prior to trial did trial counsel reve al t o t h e co u rt an y co n fi d en t i al communications she had with defe ndant or any of the discussions she had with the State. The

case proce eded to trial, and defenda nt was found g uilty on August 11, 2009. Trial counsel filed a motion for a new trial and, later, an amende d motion fo r a n ew t ri al

. Howeve r, defe ndant filed a motion to proce ed pro se , acc using trial counsel of ineffe ctive assistance
, and then adopted trial counsel’s motion, which was eventua lly superse ded by d ef en d ant’s amende d pro se motion for a new trial. ¶ 105 Paragraphs 8 a nd 9 of the motion alleg ed the f ollowing:
“8. The defe ndant’s rig hts wer e violated und er the 6th Amendment to eff ective counsel when [t rial counsel] questioned defe ndant’s fitness to stand trial and failed to have de fenda

nt evaluate d.
9. The defe ndant’s rig hts wer e violated when a conflict of interest ar o se when defe ndant [ sic ] desire to testify on his own behalf beca use of relig ious beliefs interfe red with [t rial c o u

nsel’s] desire for defe ndant not to testify

. [Trial counsel] advised defe ndant he did not have a defense in which now defe ndant cl aim s violated hi s 1st Amendment rig hts of relig io n an d fre edom of speec h. And under 775 I L CS 35/10(1) and Article 1 section 3 of the Constit ution of the State of I llinois

. ( People v. Daniels
, 230 I ll. App. 3d 527, 535).” ¶ 106 On October 1, 2009, the trial court conduc t ed an i n quiry of defe ndant reg ardinghis ability to repr esent himself. De fe n d an t ex presse d a desire to discharg e trial counsel and
proce ed pro s e despite the trial court’s offe r to appoint new counsel. The court found that defe ndant had the c apac ity to repre sent himself and ha d sufficie nt knowledg e. ¶ 107 Def

endant reque sted discovery in prepa ration for his post t ri al m o t i on hear ing. At the

-35-October 15, 2009, status heari ng , the State tender ed its discovery in the case

. Also on

October 15, defe ndant reque sted “all repor ts, rec ords, and documents in t h e P u b l i c Def ender ’s Offic e conce rning [hi m] and [hi s] case .” Def endant also reque sted “any kind of written things that [t rial counsel] may have written down *** [r] eg arding when [she] came up and interviewe d [hi m] .” Def endant explained that he neede d trial counsel’s notes to “help [hi s] case in proving ineffe ctive assistance of co u n s el.” Def endant also rema

rked that he “may have to call a couple of other public defe nders as witnesses.” The court g rante d defe ndant’s re quest. The f ollowing e x chang e then took plac e: “[TRI AL COUNSEL ]: Even though I ’m not on Mr. Watson’s case on that case , I do think that [defendant] needs to be advised that if that’s what he’s reque sting, those notes need to be turned over to the State. They ’ll see details of conver sations that wer e had betwee n us. THE COURT: Mr. Watson.
DEF ENDAN T: Well, could Irevie w them first? I ’m the– THE COURT: Counsel. [TR I AL COUNSEL ]: J udg e, I ’ll do whateve r the court reque sts. I ’m j u st–I just wanted to make sure that Mr. Watson wa s advised of tha t.
THE COURT: Uh-huh. Yea h, I mean, if y ou’re g oing to be utiliz ing notes from y our attorney t o support y our claim that y ou rec eived ineffe ctive assistance of counsel, the State’s Attorney has a rig ht to see those notes. That would mean that y ou would literally be waiving y our rig ht to the confide ntiality of those notes. Those notes are confide ntial betwee n you and your attorne y , but now that y ou’ve c laimed that they ’re ineffe ctive in assisting you in the counsel, a nd y ou’re g oing to use those notes–
DEF ENDAN T: They

could be he lpful. THE COURT: Then the State’ s Attorney is entitled to see them.”
Arra ng ements wer e made for defe ndant to revie w the notes befor e allowing the State to see them. ¶ 108 On October 22, 2009, another status he aring was held in pr epar ation for the hear ing on defe ndant’s posttrial motion. Def endant told the court that he neede d to subpoena Assistant Public Def

ender s L ight and Fr ank Perri, and also possibly Gallagher and Swenson. When the
court asked defe ndant why he neede d the detec tives, defe ndant answe red that it “conc ern[ed]
a neg otiated plea.” Trial counse l then explained to the court that, at one time, there w as an ag ree ment that involved defe ndant clearing case s, and he did clea r cases but later c hang ed his mind about the plea. The court rema rked that it did not see in defe ndant’s posttrial motion “any attempt to enfor ce a plea neg otiation that [defendant] bel i ev e[ d ] was not kept.” Def endant then c ommented that he ne eded time to ame nd his moti on. ¶ 109 On Dec ember 3, 2009, the trial court conducte d a hear ing on d ef en d an t ’s p o s t t ri al motion. Defenda

nt called se vera l witnesses: trial counsel, Perr i and L ight, a nd Swenson. ¶ 110 Perri testified that, on the day of trial, he was asked by trial counsel to meet with her and defe ndant to discuss whether d ef en d an t should testify

. Perri testified conce rning that meeting :

-36-“Q. Can you clar ify exactly what [ t rial counsel] wanted y ou to observe when she broug ht y ou into the bullpen to speak to me?
A. Ba sically what I rec all was whether or not y ou should or should not testify

. There

was no indication on y our part whether you wanted to or didn’t want to. We wer e looking at y our opt ions and looki ng at t he opti ons of whether y ou should o r s h o uld not testify
, any risks that y ou would be exposi ng yourself to in testifying. There was never any indication that she for ced you not to testify , if that’s what y ou’re indicating

. Q. No, I ’m not saying that at all. I ’m just trying to establish that we wer e at odds whether Ishould take the stand or not. Imean c an you verify that? A. And I ’m saying that it’s my rec ollection of t h e co nversa tion was [ sic ] y ou wer e simply looking at all t h e options, whether y ou should testify and how that might play itself out at trial, and if y ou didn’t testify
, how that might play itself out at trial. And we wanted to make sure that y ou understand how differ ent scena rios could play themselves out at trial. Q. And it was c lear

at that time that Iwanted to take the stand.
A. And ag ain, there was no conclusion rea ched by y ou whether y ou did not want to. We wer e simply discussing the differ ent options and that at the end of the day that it was y our decision wheth er y o u wanted to testify or not. And we made sure that y ou understood that. Q. So both of y ou ag ree d that Ishould not have took [ sic ] t he stand?
A. No. Ag ain, we laid out the risks
, the cost/bene fit of t estifying, and we indicated it was up to y ou whether

y ou wanted to testify

or not. Q. Do you rec all what it was that I was wa nting to take the stand for ?
A. What I rec all y ou [ sic ] indicating that, something to the eff ect that beca

use J esus forg ave y ou, that the jury

would forg ive you, too.” ¶ 111 L ight testified that, on Marc h 16, 2009, he and trial counsel met with defe ndant

. T ri al counsel wanted her and L ight to speak with defe ndant toge ther reg arding his rea sons for “not
g oing with the [ State’s] offe r.” Accor ding to L ight, trial counsel an d d efe ndant were “180 deg ree s” apar

t on how to defe nd the case

. The three of them discussed defe ndant’s proposed testimony
, which, L ight rec alled, had “a relig ious component t o i t , ” b ut L ight could not

reme mber any further details. L ight also could not r emember if trial counsel and defe ndant d is a gr e e d o ver whether he should testify

. To ref resh L ight’ s rec ollection, defe ndant produce d defe nse exhibi t 3, trial counsel’s notes of her conver sations with defe ndant. The notes rea d as follows: “3/16 J ail Visit

– D. wants to testify that he was there
, but it was the ‘sin w/in me’ that d i d t h e cr i m eexplained to him not a def ense a nd not in his best int ere st to testify

. –L ater meet w/dave. Per Dave - not enoug h for fitness, I have to let D testify if he wants to.
–L ater met D in jail w/Ed

-37-–See other notes –been f org iven by

God
–so can’ t plea guilty –diff. btwn fle sh + spirit (E –not judgingspirit) [1 1 ]

–L aw of man does not apply

to me (I ’ve be en for g iven [il leg ible]) –spiritual laws/g rac e sy stem –not judgment sy stem
–I ’ve be en ca lled to a hig her pur pose (Jury has limited role–did y ou do it? ) –The sin w/in me committed the cr ime E: body execeted [ sic ] whatever the sin did –judge not competent to judg e you spiritually –spiritually

irrele vant–not g oing to let in at tria l –Wasn’t me but sin that dwelled w/in me
–E: ever consider possibility

that y ou could be wr ong ? (Talk to pastor/or chapla in)

***
–God uses lea st likely

people to show prophe sies –Want truth to be known
–E: God has sense of rig ht v. wrong –why g od on y our side in this instance –God say s conseque nces pa id for by J esus g oing to the c ross –Mans [ sic ] l aw a

pplies to–DNK: Can not speak a s to what God would say –E: may be your [ sic ] being sele ctive and only hear ing what you want to hea r –E: What y ou want to say is not admissi ble
–I ssue is fac tual not spiritual –[I lleg ible] t ruth = God ha s forg iven me –[I lleg ible] hope = J ury

same for g iveness –Can convict my

flesh–ca nnot convict my

spirit.” ¶ 112 L ight testified that defe nse exhibi t 3 ref reshe d his rec ollection that “[defenda nt] wanted
to testify
, and [t rial counsel] cautioned ag ainst it, which I wo u l d have ag ree d with.” L ight observe d that the notes also ref lect that defe ndant was told that his proposed defe nse would
not be “lawf

ul.” L ight denied, howeve r, that either he or trial counsel told defe ndant that he

co u l d n o t testify

. Finally
, L ight rec alled that he and trial counsel discussed defe ndant’s fitness to stand trial, but that the discussion did not take place in defe ndant’s prese nce. L ight noted that, af

ter obser ving de fenda

nt at the Marc h 16, 2009, meeting
, he had no doubt that

Pre sumably, “E” des ignat es Ed Li ght. 1 1

-38-defe ndant was f it. ¶ 113 Swenson testified that, as he rec alled, there had been an ag ree ment betwee n the defe nse and the State. The ag ree ment was that defe ndant “would cooper ate and participate in a drive around and clea

r up all the case s that [he w as] involved in in exchang e for [hi s] guilty plea on two residential bur g laries a nd the sentenc e of 25 to 30 y ear s.” ¶ 114 L astly
, defe ndant called trial counsel. T h e t ri al co urt admonished defe ndant that, by calling trial counsel as a witness, he was waiving his attorney -client priv i l eg e. Def endant acknow led ged t he admonishment and elec ted to proce ed with the examination. Counsel aff irmed that, at one point in her repr esentation of defe ndant, they wer e “at odds” over how
to proce ed with the defe nse. Def endant wanted trial counsel “to prese nt cer tain evidenc e that [she] did not think was in [hi s] best interests to prese nt.” Specifica lly
, defe ndant wanted “to get u p o n the stand and confe ss.” He wanted trial counsel “to argue to the jury that [defendant] had committed this crime; howeve r, [defendant] had been forg iven by God, and there fore the jury should fo rgi v e [hi m] as well and find [hi m] not g uilty .” Def endant then showed trial c ounsel defe nse exhibit3 in an ef fort to r efr esh her rec ollection as to whether he discussed with her “anothe r line of defe ns e. ” After revie wing the exhibi t, trial counsel

rec alled that defe ndant had claimed that “it was t h e s i n that compelled [hi m] ” and that counsel did not “know howthat went into [defendant’ s] line of defe nse.” Counsel r eca lled that, since she had never had a client who wanted to confe ss on the stand, she spoke with her supervisors. Counsel broug ht L ight to one of her meeting s with defe ndant beca use she wanted “ someone e lse just to come up and talk with [him ] and explain, someone who w as

m ore experience d.” Counsel thought that defe ndant “would be more rec eptive to an o l d er male.” O n another

occa sion, counsel broug ht Perri with her
“t o b e a prover in case something like this happene d, beca use y ou had chang ed y ou r mind–before trial had st arte d and the months leading up t o t ri al y ou had chang ed y our mind from wanting to testify to not wanting to testify

. For sever al months leading up to trial y ou told me that you did not want to testify

. On the day of trial, afte r the State rested,
y ou had told me that y ou thought y ou had chang ed y our mind an d wa n t ed to testify

. Ag ain I told y ou that I did not think it was a g ood idea. And at t hat poi nt I just wanted to make sure that there was no room f or dispute. So Ihad Mr. Per ri come in to wit ness the conversation of ag ain going over the benef its and the risks of y ou test i fying. And I wanted to g o over tha

t ag ain bef

ore you made your final de cision.” ¶ 115 Trial counsel testified that she m ad e i t “c l ea r” t o defe ndant that it was not in his best interests to con fe s s t o the crime, beca use “the jury would be order ed to follow cer tain instru ct i o n s , and based on those instructions, they would more likely than not find [hi m]
g uilty .” This exchang e followe d: “Q. So my

belief in God w as in conflict with your re asoningof def ense?
A. I don’t reme mber–I mean I advised y ou that it was not a leg al defe nse to put forth, that there is no basis in law for t h e j u dg e or anyone else to argue to the jury that y ou could be f ound not guilty

beca use God ha s forg iven you. Q. So y ou never

advised me that Ihave the rig ht to speak that whi ch I be lieve in to be true?

-39-A. I advised y ou that y ou have a rig ht to testify and that y ou could testify

. I told y ou that. I told y ou it was y our choice

. I advised ag ainst it. I rec ommended that y ou not testify , but Idid tell y ou that is y our choic e to make. Q. So the choice was to g o with y our line of r easoning ? A. That wa s your choic e that you made.” (Emphasis adde d.)
Trial counsel aff

irmed ag ain that she made it “ver y clea r” to defe ndant that he had the final d ec i s i o n as to whether he would testify

. Counsel never told defe ndant “that he could n o t testify .” ¶ 116 Def

endant next asked trial counsel about her decision not to argue to the trial court that defe ndant was unfit. Co u n s el had had conce rns over defe ndant’s desire t o “conf ess on the stand,” but she “neve r had a doubt of [defendant’ s] competenc y to stand trial.” When she told her supervisors about defe ndant’s desired course of action, they initially questioned whether defe ndant was “delusional.” Counsel explained, “I think it’s a natura l questioning for

someone to say to me, without meeting or talking to y ou, well, is this per s o n s an e. ” After L ight spoke with defe ndant, howeve r, he ag ree d with c ounsel that defe ndant was not unfit. ¶ 117 Trial counsel acknow ledg ed that there wer e plea neg otiations in the case

. Def endant ha d
ag ree d that, in exchang e for a g uilty plea to “one residential burg lary or possibly two” with

a total sentenc e of 25 y ear s, and dismiss al of the rema ining char g es, h e would assist the police in “ clea

ring up sever al burg laries that the police thought [he wa s] i nvolved in.” The defe nse had wanted the State to reduc e the charg es “so that [defendant] could be rele ased and do treatment,” but the State re fused. Tr ial counsel testified f urther:
“A. So then at one point y ou indicated to me that y ou did want to cooper ate. After you indicated t o me that you did want to take the offer and cooperate
, then t hat’s when–of

course the agreem ent was contingent u p o n you clearing up these crimes. So after you indicated to me that you did want to take the agreem ent and cooperate d, we set up

mee tings wi th the detec tives. Q. And do y ou ever rec all me s tating any thing specific I would have had y ou rela y to the State conce rningthese plea neg otiations?
A. I mean I guess y ou just wanted to make sure that they didn’t want y ou to implicate
any body else who ma

y have he lped you. Ido rec all that. And they made clea r that they didn’t want you to nece ssarily g ive up any

body , so to speak. You wa nted t o make sure that they wer en’t g oing to c harg e you with any of these, which we ma de cle ar.

*** Q. At any point in time did I indicate if any body had been convicted wrong fully that
y ou would bring t h at to the State and let them know that there may have been people convicted wrong fully

and I may have know ledg e of that?

***
A. Yea h[,] y ou said that if y ou found that out, y ou would want me to bring that to the State’s attention. You never told me–and that was the end of it. You never said that y ou had found a

ny thing out like that. Q. So the office rs neve r broug ht that to y our attention?

-40-A. No. And you never broug ht that to my

attention either. Q. So any thing that I would have admitted to under plea neg otiations and somebody

was wrong fully convicted of that, that would be in the plea neg otiations that the office rs repor ted?
A. Well, I mean I know that y ou had clea red up a lot, may

be even close to a hundred residential burg laries, and I g ot repor ts t h at l isted all of them, addre sses, so there are repor ts of that, y es.” ( Emphasis added.) Def endant then asked, “So there could be–so there could be case s that other people had been
wrong fully convicted under that I may have admitted to? ” The c o urt questioned the rele vance of this inquiry , and def

endant r eplied that it was “part of our pl ea ne g otiations, and Idon’t believe [t rial counsel] held up her part of the plea nego t i at i ons.” The court sustained an objection, and defen d ant stated: “Well, I g uess that I ’m just trying to establish that I was under plea neg otiations and I was under an ag ree ment, that the ag ree ment wasn’t lived up to by the State or my defe nse.” Th e S t at e t h en s t ated that it wanted “to make clea r for the

rec ord” that the State did not fail to honor the plea ag ree ment but that it was defe ndant who later r ejec ted the agree ment. Def endant state d, “[T] hat is corr ect.” ¶ 118 Duringarg

ument on para g raphs 8 a

nd 9 of his posttrial motion, defendant said:
“I believe m y ri gh t t o adequate counsel and to express my views and beliefs wer e [ sic ] denied beca

use they wer en’t taken seriously and they wer e–I was told that it wasn’t

a line of defe nse but as–I believe under the First Amendment, rig ht to relig ion and fre edom of speec h, she could have advised me more in a way that and encour ag e me to pursue those be liefs.”
The trial c ourt denied de fenda nt’s posttrial motion. ¶ 119 O n D e c e mb e r 1 0
, 2 0 0 9
, the case proce eded to sentenc ing. Def endant’ s prese ntence rep o r t showed an adult criminal rec ord that included convictions of burg lary
, residential burg lary
, ag g ravated assault of a police office r, and drug possession. In re q u es t i ng the maxi mum sentenc e of 30 year s, the State argued in par t: “I know t he C ourt has reviewed the pres en t ence report, and obvious ly the t hing that is of most signific ance is the Def endant’ s criminal rec ord. I t appea rs that Def

en d an t has pretty much been incar cer ated in the Depa rtment of Corre ctions or jail since August of 1988.
* * * *** [The] criminal history *** is the big a

nd major portion of my

argument here .” ¶ 120 Def

endant made a stateme nt in allocution, which follows in its entirety : “I was g oing to prepa

re a note but I decide d to just g o on what I know, y ou know, the truth. I t’s not alway s easy to say , what nee ds to be said, when you’re in a situation like this. Since I ’ve been here in the county jail I ’v e t ak en the steps to g et involved in
prog rams, most of them perta ining to spiritual programs. I know my past is any thing but
g ood to look at. I can even understand why the State’s asking for what they are

. Idon’t want to sit here a

nd make e x cuses f

or any thing.

-41-I h ave been rea ding the Bible a lot, and I believe I ’ve come a long way s, and th e prog rams that have been offe red to me I believe I took advanta g e of them to the best of
my ability . *** [Defenda nt submit s a pac ket of doc uments including a photogr aph.] *** The picture is of my

sister’s kid. Iknow there ’s a possibi lity it could be a long time befor e I see him. He means a l o t t o m e. I g uess I don’t want to make excuses beca use I can understand wher e the State’s coming fr o m an d ev ery thing from what they ’ve prese nted, and under stand why they don’t want me on the street, but I can only speak for what I believe that I ’ve done since I ’v e b een here
, the prog rams I ’ve been involved in, and [ sic ] has to do with my faith in Christ. I know no matter what sentenc e y ou send forth [ sic ] is going to be l ess t han what I deser ve. I t say s in the Bible ‘for the
wag es of sinner [ sic ], death.’ So I know what I deser ve. Howeve r, I do put my faith and
trust in my L ord Savior J esus Christ, who paid the price for my sins. I know that doesn’t justify me standing in front of y ou rig ht now but I know as God sees something g ood in me, I hope you will.
I just want to thank y ou offe ring me the opportunity to be a part o f t his. I know I haven’ t been r ight a ll the time, Ihad many faults, but I ’m just thankful I ’m in a sy stem like this wher e I had the opportunity to speak my peac e [ sic ]. I would ask for forg iveness from all those that I have harmed. I n the s ense that in the past I m ay h av e been able to justify my actions, I cannot do that today
, other than what I can believe in, that is my life, J esus Savior pay

ing f or my sins.
I would just hope that y ou would take into considera tion the time I spent here and the
prog rams I ’ve been enrolled in and the opportunities I ’ve took [ sic ] in order to make an eff ort at trying to better my self. I don’t believe my problem has been drug s and stuff like that. Ibelieve my

problems has [ sic ] been with sin. The only way I can deal with these problems is throug h the word of God. I ’m lear ning that today

. I ’m g rowing in faith. And whateve r sentenc e you decide to decide on I hope it will be merc iful. I ’d just like to have an opportunity

some day

to at least be a

ble to seek fre edom as people know it, and just apolog ize for takingmy

fre edom for grante d.” ¶ 121 In pronouncingsentenc e, the tria l court said in par t: “[Defe ndant’s] asking for forg iveness from the people that he has harme d. I assume he meant harme d in the sense that he broke into their homes. You know, some relig ions profe ss that the confe ssion of sin is g ood for y ou, that that somehow will wipe the slate clea n, but there are other relig ions that talk about confe ss i o n s o f s in as well that say basica lly a true confe ssion of sins, sins that are committed ag ainst God, God forg ives, but when they ’re sins a g ainst others, God does not f org ive until that person atones to those they have sinned ag ainst. You know, it’s nice to s ay I ’m sorry , I ’m asking for forg iveness, but that is not enoug h, not just in relig ious terms, it clea rly is not enoug h in secula r terms, cer

tainly befor e a Court that has to impose a sentenc e acc ording to the dictates of the law.
*** I don’t discoura ge y ou from continuing in [t he prison prog rams], but I don’t think it is enoug h for me to ‘for g ive y ou’ for the things that y ou have done in y our past.”

-42-¶ 122 3. Discussion

¶ 123 As noted, plea barg aining is so potentially benef icial to a criminal defe ndant that, in some

case s, it might be ineffe ctive assistance for defe nse counsel not to neg otiate. Her e, defe ndant

was fac ing multipl e pending char g es, including three residential burg laries aside fr o m the
prese nt offe nse. The curr ent char g e was substantiated by DNA evidenc e, and defe ndant confe ssed t o t ri al counsel that he had committed the crime. The police also had evidenc e linking defen d an t t o two other residential burg laries (which m ight or might not have been char g ed while the prese nt case was pending below). Def endant was l i n k ed to the Har lem Boule vard burg lary by DNA evidenc e. He was linked to the Euclid Avenue burg lary by his possession of the stolen items and by his incriminating conduct and statements repor ted by his g irlfriend, Swewait, an d a criminal associate
, Hoper

. Moreove r, defe ndant communicated, in the course of plea neg otiations, that he was i n v o l v ed in near ly 100 residential burg laries. Given the likelihood that, if a resolution wer e not rea ched, defe ndant would be convicted of multipl e residential burg laries, and could fac e up to 60 year s in prison under mandatory consec utive sentenc ing, trial counsel neg otiated with the State, as was her
prer og ative and, a

rguably , her duty

. ¶ 124 Trial counsel secur ed an offe r wher eby
, in exchang e for defe ndant’s plea of g uilty to one or t wo residential burg laries and his cooper ation in clea rin g u n solved burg laries, the State would rec ommend a prison term of 25 to 30 y ear s and dismiss the rema ining cha rges. Def endant reject ed t h e o ffer, and trial counsel noted for the rec ord that the decision was ag ainst her rec ommendation g iven defe ndant’s potential s entencing exposure. As trial
approa ched, de fenda

nt announce d that his trial strategy was to confe ss also to the jury and ask that they forg ive him as God had forg iven him. Trial counse l s o u gh t assistance from L ight, who in Marc h 2009, five months befor e trial, met with defe ndant and trial counsel. At their meeting
, defe ndant confe ssed to the crime, as ref lected in defe nse exhibi t 3. Acc ording
to trial counsel, defe ndant eventua lly dropped this peculiar trial strategy and, for s ev er al months afte rwa

rd, planned not to testify

. At trial, howeve r, afte r the State rested, defe ndant informed trial counsel that he had ag ain dec i d ed to take the stand and confe ss. Her e, I believe, there is extra rea son for ref raining from assumptions as to trial counsel’s rea sons for conducting her defe nse as she did. Def endant’ s proposed trial strategy was so askew that he might well have told t ri al co u nsel not to challeng e the DNA evidenc e. We simply do not know. ¶ 125 After

defe ndant told tr ial counsel that he wanted to take the stand a nd confe ss, counsel enlisted Perri, and toge ther they met with defe ndant. Def endant ultimately did not testify

. He

was convicted, and he now complains about trial counsel’s perf ormanc e. (Ironica lly
, in the
very proce ss of doing so, defe ndant discloses the confe ssions he made to trial counsel, and there by inadver

tently underc uts his complaint by showing that he suffe red no prejudice from counsel’s perf

ormanc e. See Part I Ibelow.) D efe ndant has little basis for c omplaint, f or his
prese nt sit u at i o n is the best of a host of bad scena rios. I f he had not been convicted in the
pres ent case , he almost cer tainly would have been convicted on one or more of the other

case s and might well have rec eived a sentenc e (60 y ear s) twice as long as what he rec eived here (30 y ear s). We c annot ignor e the nature of trial counsel’s pr edicament in repre senting

a client char g ed with multipl e crimes, on some of which there was irresistib l y s trong

-43-evidenc e. S ee People v. Thomas
, 164 I ll. 2d 410, 431 (1995) (noting that defe nse counsel,

in developing a mitigation strategy at sentenc ing in a murder case , had a “diffic ult set of fac ts with which to work,” namely
, the defe ndant “committed a brutal crime ag ainst a woman and had previously committed six other brutal crimes ag ainst wo m en ” and had also “lied [t o counsel] about his psy cholog ical problems and family history ”). Counsel perf ormed

co mpetently at trial, y et defe ndant was convicted. After war d, the State, in its discretion, dismiss ed the other pending char g es. Vi ewe d rea listi cally
, and without wre nching her individual acts out of context, counsel’s repr esentation was, on the whole, competent. At the end of the day , defe ndant did not fac e conse cutive sente ncing

. ¶ 126 Even if tria l counsel had perfor med below pr ofessional standa rds, I would be re luctant
to ag ree that trial counsel was wholly responsible. “The rea sonablene ss of counsel’s actions
may be deter

mined or substantially influence d by the defe ndant’s o wn s ta te me nts or actions.” Strickland
, 466 U.S. at 691. I would not be able to ignor e the possibili ty that defe ndant’s

rec urrin g d es i re to confe ss on the stand compromised trial counsel’s prepa ration. See Thomas
, 164 I ll. 2d at 426 (counse l’s failure to discover the defe ndant’s hist o ry o f
psy cholog ical problems was due partly to the defe ndant’s and his mother’s false denial that the def endant ha d suffe red f

rom any emotional disturbance s). ¶ 127 For the fore g oing rea sons, I ca n n o t agr ee t h at t ri al co u n s el ’s p er formanc e wa s

unrea sonable.

¶ 128 I I . Any Def iciencie s in Trial Counsel’s Perfor mance Did Not Prejudice D efe ndant ¶ 129 A. I ntroduction ¶ 130 S i n ce defe ndant has simply cited scholarly article s and identified no prac tical way i n which trial counsel could have improved her challeng e to the DNA evidenc e, I cannot agree that defe ndant has established prejudice

. Moreove r, I ag ree with the State that there was no prejudice also beca

use defe ndant, in his statement in allocution, confe ssed to the crime char g ed. Def

endant stated in part: “I know no matter what sentenc e y ou send forth is g oing
to be less than what I d

es er ve ” (empha sis added)

. (Above
, in Part I (B )(2)
, I set forth the entire state ment.) ¶ 131 The majority sug g ests that defe ndant’s statement might have perta ined to his past crimes and not to the current offense. I disag ree . First, defenda nt’s choice of words clea rly shows that he was confessing to the curr ent offe nse. Second, the trial court’s rea ction to the
statement shows that it interpre ted it as an apolog y for the curr ent offe nse. Third, the posttrial
proce eding s on defe ndant’s ineffe ctiveness claim sug g est that defe ndant’s statement in allocution was the implem en tation of a strategy that he had proposed to take at trial, i.e.
, confe ss to t h e cu rr ent crime and seek merc y –a strategy that, he claimed, trial counsel unconsti tutionally barr ed him from pursuing

. In the course of proving his ineffe ctiveness claim, defendant, acting pro se , introduced into evidenc e defense exhi bit 3, trial counsel’s
notes of her pretria l conver sations with defe ndant. Def endant introduced this document for the express purpose of showing that he wanted to make a confe ssion to the jury
, and indeed the document contains statements that can be taken only as confe ssions. Thus, unrec og nized

-44-by the State, the rec ord contains confe ssions other than those that defe ndant made i n his

statement in allocution.

¶ 132 B. D iscussion ¶ 133 1. The Note s of Trial Counsel’s Disc ussions W ith Defe ndant ¶ 134 “A confe ssion is a voluntary acknow ledg ment of g uilt afte r the perpe tration of an off ense

or of fac ts which direc tly and n ec es s ar i l y imply g uilt.” People v. Gree n , 17 I ll. 2d 35, 41 (1959). A confe ssion may be classified as judicial or extrajudicial. Id. “A judicial confe ssion consists of a plea of g uilty to an indictment or some similar action or conduct in a court or judicial proc eeding .” (Emphasis added.) Id. After such a confe ssion, a defe ndant “may not question the leg al suffic iency of the e vidence ag ainst him.” Id. at 42. ¶ 135 Neither defe ndant nor t h e m aj o ri ty disputes that, when defe ndant introduced de fense exhibi t 3 int o evidenc e to establish the truth of what was asser ted there in, the document beca me admissibl e as evidence ag ainst him. See People v. Johnson
, 44 I ll. 2d 463, 470 (1970) (whe n an incriminating extrajudicial statement by a third party is admitted to be true by the defe ndant, “the statement by adoption become s his own and is admissible in evidenc e ag ainst him”). ¶ 136 The majority
, howeve r, ag ree s with appella t e co u n s el that defe nse exhibi t 3 does not contai n a c o n f

e s s io n to the curr ent offe nse. Acc ording to the majority
, defe ndant’s statements in the ex hibit are simply repr esentations of what he was contem p l at i n g he would say if he took the stand, not what he actua lly aff irmed or asser

ted to trial counsel and L ight. Acc ording
to the majority
, “evide nce that defe ndant discussed with his counsel confe ssing the crime in

co u rt does not equate to a judicial confe ssion.” Supra ¶ 36. As the majority sees i t , defe ndant’s statements no more amounted to judicial confe ssions than defe ndant’s discussions about pleadingg uilty amounted to a guilty

plea. ¶ 137 The majority ’s compar ison is faulty

. T r ia l counsel’s notes consist of three pag es. The fir st notation rea ds: “D. wants to testify that he was there
, but it was the ‘sin w/in me’ that did the crime.” The second notation rea ds: “Explain ed t o h im not a defe nse and not in his best interest to testify .” These statements may rea sonably be construed as simply ref lecting what defe ndant would say if called to testify

. The rema inder of the notes, howeve r, do not ref lect strictly how defe ndant would testify but a lso a ppear to be statements of his pr esent beliefs. Def endant’ s first s t atement in the rema inder of the notes is that he has “bee n forg iven by God” and “so can’ t plea g

u il ty .” This statement entirely underc uts the majority ’s position that defe ndant’s stateme nts of culpability are entirely tentative or hy

pothetical. He re de fenda

nt is not indicating what belief he would profe ss to the court or the jury if he took a particula r proce dural course

. Rather, he is indicating that his prese nt beli ef, i.e.
, that he has been forg iven, is direc ting his proce dural options. That defe ndant believes he is forg iven implies that he believes he did something worthy of judgme nt. D efe ndant follows this re mark with various statements such as: (1) “L aw of Man does not apply to me”; (2) “I ’ve been called to

a highe r purpose” ; (3) “The sin w/in me committed the crime” ; (4) “Wasn’t me but sin that dwelled w/in me”; (5) “God uses least likely people to s h o w p ro p hesies. Want truth to be known”; and (6) “can convict m y flesh–ca nnot convict my spirit.” The majority ref uses to

-45-take these s t atements at fac e value, as expressions of g enuine belief, but believes that

defe ndant is the entire time testing the water s with hy pothetical testimony

. This is untenable. Statement (5) sug g ests that defe ndant wishes to testify to express a curr ent belief, an d the
context sug g ests that the “truth” he wishes to express is his belief that sin was responsible for his deed and that God has forg iven him. No t ably
, rema rks (3) and (4) wer e appar ently wh at p ro m p ted L ight to ask, “Eve r consider the possibili ty that y ou are wrong ? ” When L ight’ s question is r ead in c ontext , it is clea r that he sawdefe ndant as e x pressing a prese nt (and pe culiar) belief a

bout the role of sin in his acts. ¶ 138 This interpre tation of the notes is co rroborated by defe ndant’s rema rks at the posttrial hear ing. Def

endant elicited from trial counsel that he had wanted to t ak e t h e stand and confe ss and that counsel advised him that it was not a viable defe nse. Def endant then asked trial counsel, “So y ou never advised me that I have the rig ht to speak that which I believe in to be true ? ” (Emphasis added.) Her e defe ndant plainly sug g ests that he what he planned to state on the stand was what he believed to be true, i.e.
, that he had committed the crime but that the jury

should forg ive him beca

use God ha s forg iven him. ¶ 139 In attempting to draw an analogy betwee n defe ndant’s statements as rec orded in defe nse exhibi t 3 and his acknow ledg ment that he cont em p l ated pleading g uilty
, the majority overlooks the fac t that defe ndant did not just contemplate taking the stand and confe ssing but
actua lly did confe ss to trial counsel. Even in the matter of the contemplated g uilty plea, there potentially are confe ssions that the State could use ag ainst defe ndant on rema nd. Def endant elicited substantial testimony from trial couns el ab out plea neg otiations, including that he

acc epted the State’s offe r and, in keeping his end of the barg ain, “cle are d up *** may be *** close to a hundred residential burg laries.” I llinois Supreme Court Rule 402(f) (ef f. J uly 1, 1997), g ener ally prohibits admission of plea neg otiations. This bar, howeve r, was meant to protec t the acc used, and here defe ndant himself elicited evidenc e of plea discussions, in the hope of e stablishing trial c ounsel’s ineff ectivene ss.

¶ 140 2. Def endant’ s Statement in Allocution ¶ 141 The majority asser ts that defe ndant’s statement in allocution is “simply too vague to be considere d a confe ssion,” as it may “be rea d as ref err ing to his remorse fo r a life of crime
g ener ally , and not spec ifically to this offense.” Supra ¶ 35. I disag ree

. ¶ 142 First, whe t h er a s t at em en t co n stitut es a confe ssion is deter mined by context. The defe ndant need not aff

irmatively articulate the crime to which he is confe ssing; it suffice s if, knowing the nature of the allega t i o n, the defe ndant makes some acknow ledg ment of responsibility for it. In People v. Helm
, 69 I l l

. Ap p

. 3 d 78 (1979), the sheriff of Tazewe ll C ounty testified to his conver sation with the defe ndant, a sheriff ’s deputy
, about an alleg ation that the deputy had assisted an inmate in committing suicide. The sheriff testified that, when he descr ibed the alleg ation to the defe ndant, he did not “ ‘deny that acc usation.’ ” Id. at 80. The sheriff then “ ‘informe d [t he defe ndant] that I was conducting an investigation into the matter and that I wanted the truth; whether it could be substantiated or not.’ ” Id. at 81. The defe ndant “ ‘re plied that he was sorry that it had happene d; that he had not intended
to c ause any

body any harm; that he didn’t want to cause me any [m ore] embar rassment; he

-46-didn’t want to cause himself any problems nor the depar tment, ag ain he was sorry

. He continued to repe at that ***.’ ” Id. In holding that the statement constituted a confe ssion, the appellate court noted that the defe ndant “wa s awa re of the fac t that he was the subject of an

acc usation to the eff

ect that he had committed a serious and wrong ful act.” Id. The defe ndant “did not deny the acc usation but instea d apolog ized r epeatedly and denied that he intended
to harm any one.” Id. The c ourt conc luded that “the de fenda nt’s statements to [t he sher iff], when viewed in their entirety
, can only be construed as an acknow led gm en t o f g uilt and there by constitute a conf

ession.” Id. ¶ 143 Helm ’s rea soning applies here

. At sentenc ing, defe ndant had no doubt as to the crime of which he w as ac cused a

nd convicted. Wit h this knowle dg e, he beg an by rema rkingthat he had decide d to tell “ the truth.” He proce eded to “ ask for forg iveness from all those that [he had] harme d.” He acknow ledg ed that whateve r sentenc e the court decide d to impose would be “less than what [he] deser ve[d] .” He stated that he could no longe r “justify [hi s] actions.” This w as, under Helm
, a clea r “ac knowledg ment of g uilt” by defe ndant as to the offe nse of which he kne w he stood ac cused a nd convicted. ¶ 144 I disag ree with the majority as to the brea dth of the confe ssion. Certainly
, since the State had just emphasized the extent of his c riminal history
, defe ndant might well have meant to express remorse for it. As it happene d, howeve r, defe ndant expressed regret not only for his past crimes but a lso f

or the curr ent offe nse. Thus, the statement was truly one of regret for,
to the use the majority ’s phrase
, “a life of crime” (empha sis added) ( supra ¶ 35). I am not

sure why the majority believes that defe ndant might have thought he could “obtain the most lenient sentenc e possible” (supra ¶ 35) by expressing remorse for all but the curr ent offe nse, since th e l at t er was, obviously
, the primary fac tor at sentenc ing. I would think defe ndant would have wanted to show as much remorse as possible. Indeed, defe ndant took a differ ent strateg y from what the majority descr ibes and decide d to te ll the “truth,” as he stated at the beg inning of his statement–a portion that the majorit y o m i t s from its analy sis. Def endant
proce eded to a sk “for forg iveness from all those that [he ha d] har med.” (Emphasis added.) Def endant noted that, unlike in the “past,” he was now unable to “ justify [hi s] actions.” He acknow ledg ed that any sentenc e he would rec eive from the court would be “less than what [he] deser ve[d] .” De fenda

nt did not qualify

the extent of his remorse. T he majority simply mistakes compre hensivene ss for vagueness. ¶ 145 This cas e i s s i m ilar to People v. Brown
, 371 I ll. App. 3d 972, 976 (2007), wher e the defe ndant was c onvicted of thre e counts of first-degree murder, six counts of unlawful use of a wea pon by a felon, and one count ea ch of arme d robber y , arme d violence, and conspirac y to commit arme d robber y

. At sentenc ing, the defe ndant stated in allocution, “ ‘I

am sorry

. I wish I hadn’t done it my self.’ ” Id. After seeking re l i ef o n d i rec t appea l, the defe ndant filed a postconviction claim of actua l innocenc e. The trial court denied the claim. The appellate court aff

irmed, noting that the defe ndant had “conf esse d t o t h e offe nses in allocution” and that his “wor ds contra dict[ed] his *** claim of actua l innocenc e.” Id. at 984. ¶ 146 The de fenda

nt in Brown was c harg ed with multiple crimes, but he expressed regret for having done “it,” which could be taken to imply a single act. The appellate court nonetheless construed the rema

rk as a confe ssion to all “the offe nses.” Def endant’ s confe ssion here was arguably more comprehensive, as he apolog ized to “ all those [he had] harme d” (emphasis

-47-added)

.

¶ 147 What also cannot be ignor ed here is the trial court’s rea ction to defe ndant’s statement in allocution. The trial court noted that defe ndant was “asking for forg iveness from the people that he has harme d,” that is, “har med in the sense that he broke into their homes.” The trial
court rema

rked that it was “not enoug h” for defe ndant to apolog ize. Certainly
, the trial court would have found defe ndant’s apolog y even less persua sive if the court had seen it as limit ed
to the past offe nses. The court evidently viewed the apolog y as compre hensive, y et still inadequate. The court could observe defe ndant’s demea nor, and so was in a far better position than this revie wing court to construe his words. See People v. W illiams
, 173 I ll. 2d 48, 67 (1996) (trial court in a better position to judge demea nor of those appea

ring befor e it and asce rtaining the meanin g of their rema rks). The majority
, howeve r, fails even to consider, much less g ive defe renc e to, the trial court’s interpre tation of defe ndant’s rema rks. ¶ 148 I t is also vital to reme mber that defe ndant was no “babe in the woods.” He had appea red befor e sentenc ing courts many times befor e. Whil e he was a fool for proce eding pro se , his filings and perf

ormanc e in court demonstrate that his strategy all along was to beg for merc y , either from a jury or, in a last-ditch eff ort, from the trial court at sentenc ing. The trial court, in its wisdom, did not muzz le defe ndant or in any way impede him in the prese ntation of the posttrial issues. Trial counsel had repe atedly war ned defe ndant that he could not confe ss in
open court and at the same time reque st forg iveness. He should have l i s t en ed

. Instead, throug h his own words and through the witnesses he prese nted, he repe atedly confe ssed in
open cour t to his guilt of the offe nse, and he cannot now se ek re lief bef ore this cour

t. ¶ 149 Finally
, I believe that the majority ’s decision today simply delay s the inevitable. While defe ndant has preva iled today
, there is a strong likelihood that the State wi l l att empt, on

rema nd, to introduce defe ndant’s various confe ssions, which, of course, include his
statements at sentenc ing. They also include, howeve r, defe ndant’s rema rks as rec orded in defen s e ex h i bit 3 as well as whateve r specific admissions about unchar g ed burg laries he made during the course of the failed plea neg otiations. The majority should discuss whether defe ndant co u l d s u cce ssfully oppose the admission of the statements. I my self cannot see how he could, since he either made the statements in open court or introdu ce d the written statements as pa

rt of his posttrial prese ntation. ¶ 150 For

the fore g oing r easons, I

respe ctfully

dissent.

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