testify against him the serial killer down the petition for second stage proceedings with ninety days and appointed counsel to represent this petition and instead of moving to dismiss the state actually answer the petition affidavit that was attached to the post sake addition at that point defense counsel took the unusual step of moving to withdraw hayden's affidavit from the best consideration and this happened over her client's objection the benefit of counsel truly in reaching that stage of the proceeding nor did he have a chance to defend himself though say so for these reasons we would ask that you reverse and remand for a new second sta proceedings thank you thank you  said that as an actor soon the court she had to withdraw the affidavit the story well this court is well aware of rule three point three the rules of professional conduct that rule is as clear as can be in states that no tells us that in the tranny need not withdraw now remember that case was about an attorney being able to withdraw not required to withdraw but there's radiation gruyere that is very pertinent to the instant case and again greer the supreme court counsel should judge the viability of those post conviction claims in other words an attorney simply because they can't substantiate the claims in the post conviction titian should not withdraw simply because of that and this is what is thought this lawyer also indicated that she had spoken with a friend in on a numerous occasions and one defendant did not agree with her decision to withdraw that affidavit there's indications in this that it's everything is fine there's a rules yes i am because there's a rule six fifty one c certificate that indicates that this council did everything in their power to make the petition she would not be capable of providing this court with a record information was obtained during the attorney client privilege conversations so for that reason she had to be perhaps up to indicate to the court as an officer of the quote she couldn't present that affidavit to me that is a clear indication that she's straight into the court that her ethical obligations under the rules of professional conduct prevent her from there isn't she playing dad here no investigation the natural course for six fifty one c investigation she discovered that a piece of evidence that was then submitted to the court now she's his attorney so she is submitting it to the credit and verifying it under six fifty one totally disagree your honor because i view what happened here is the unique circumstance where we have to help and i think this is a circumstance that kuma itself the illinois supreme court recognize that occasionally his conviction counsels are going to be confronted with ethical questions that does not necessarily mean that they are required to withdraw this as a question occurred early on and require this counsel under get them might have been that was early on during the discussions about having a go to third stage with a false affidavit for instance that's it and i'll just give an example of perhaps what counsel was thinking about the only third stage that's a violation of the rules of professional conduct that could give rise to ineffectiveness if she didn't withdraw it so she's in an ethical boundaries so crap she was talking about ineffective assistance or unreasonable assistance in that context that was very early on during this pending post conviction proceedings after she with true in the invalid fraudulent affidavit as she was required she had no choice in the matter she was required to do that after she did that she still had the remaining choice try to make the defendant's titian survive which was virtually impossible in this case but that itself does not require withdraw under green or using a the this is not a valid affidavit so the senate at that point meant for now their counsel to take a look at this succession of councils to take a look at this and naseem until we find one that perhaps will present this  an affidavit despite the ethical obligations that's untenable as well and there's no indication in this record the defendant who had continued communications with his attorney ever wanted to proceed i will say this is not a situation like the jackson case is the outcome in short rich cases where the defendants themselves were saying i want to represent myself i want to do something i want to put this forward i don't think those big point about notice how the defendant didn't have notice that this was what his attorney was going to do with downright just according to how can the film of that case so when we take a look at what happened here the attorney defendant what she wanted to do he did not agree with it but he does not get to make the ethical decisions in so far as what the rules of professional conduct are and how the attorney can or cannot behave according to th issue fact finding that somehow this lawyer was was playing god and kitchen in fact finding and i would suggest this is not the typical scenario this is not a situation where we know a witness has maybe executed a different application well his said multiple stories at different times and the witnesses admitted that and now claims one version over the others that's an issue of fact that's a witness who said different things at different times this is a witness batted proof that this is not the witnesses affidavit because of that there is no choice it has to be withdrawn and then we didn't agree or territory where the next choice is what is that attorney supposed to do and the attorney has two choices they did she did the best that she could well in those other cases you just missed it he'd say that right i understand that so what i'm doing is i'm the set of counsel's investigations is completely unknown and it's the whole point of an evidentiary hearing is to decide what's real and what's not anything short of that and we have to take factual allegations on the rule you know the duty of counsel not to present something frivolous we're looking below the duty to withdraw from certain proceedings is not just in this case law it certainly is but it's also in the rules of professional conduct a one point one six creates a duty to withdraw when the representation would result in a violation of the rules so bad you need to withdraw as you can see from the