have please a court time helen borrow system u s attorney from boise idaho i'd like to reserve three minutes for rebuttal in this case the united states sas is asking the court to reverse the district court which set aside jennifer mcclellan's convictions for arson and mail fraud and granted her a new trial this mcclelland's case was particular was previously before this court on direct appeal in which she attacked  sufficiency of the evidence this court affirmed the supreme court subsequently denied search yari the district court set aside ms mcclellan's convictions and granted a new trial here based on  erroneous finding that her defense attorney douglas phelps had his performance adversely affected by a conflict of interest occasion by a joint representation mr phelps also represented norma holstrom a potential witness in the case of potential impeachment witness ms holstrom was charged in a separate court washington state court with unrelated crime and unrelated arson and it came out during trial that mr phelps also represented ms holstrom the only adverse effect of then a five by jennifer mcclelland and her twenty two fifty five pleadings and the only one found by the district court was that mr phelps when the conflict of interest came out of hand in his attempt to call miss holstr now that is simply not what the record shows olson was going to impeach a government agent who had taken a confession from the client on the grounds that holstrom head was going to testify that she had been testify she did not testify but the court concluded that after this issue first came up in the case that mr phelps abandon his attempt to call her that is simply not with the record shows  and i agree with you it's not like the record shows but the bottom line remains the saying she didn't testify and she was a potentially helpful with this to them but she did the reason why she did not testify was not because mr phelps's representation was adversely affected this case is completely unlike the elliott case which has been cited to this court in the midst mcallen's twenty a j letter it is much more like the met case indeed if you were to apply eliot here and met here mcclellan is on the other side of met and then that case as a judge can sense he pointed out in his concurring opinion you had a joint representation but the two clients were in separate courts charged with unrelated crimes there their interests were not necessarily adverse ones guilt did not depend one's innocence did not depend upon the other one's  not hinge on pending guilt on the other one completely to the opposite in their interest their mutual interest depended upon the innocence of the other one they had a arrangement where each one was going to testify at the other's trial they were not back with us they had no knowledge of one another's facts they were potential impeachment witnesses as to agent heart and therefore the benefit for each client depende can't figure out what the district judge was so concerned about and why he pursued at the level he did i mean on one level you want to be mindful of the fact of a witness has rights too and easy properly advise but it's not very hard to understand what you just said and yet mr phelps hide two different paths to get get her testimony and got turned away and the government had nothing to do with this this was the court's intervention but at the end of the day we're still left with the problem  witness who was not a lab testify but i would point out your honor when argued to the court that that is not an adverse effect this is a witness that the court and its discretion to decide to exclude because all what authorities the court have to one other person impeach i'm going to stop there is humility i don't think that would that would survive because not easy to impeach a federal agent your honor in this case ms mcclellan didn't have one confession she had to and the second one w weaver it was a private confession a spontaneous confession to the father of her child and there was a lot of corroborating evidence tending to show that jury and weaver did not make this up to heat the detail he related to the agent and it wasn't a job that i hear that but that's responding in a very different way that's in effect tang look there's the whole thing is harmless error because it was overwhelming proof the confession was just she was guilty that doesn't speak to the question of whether the federal agent was credible or whether he had a pattern of extracting these confessions and so forth on that particular issue i mean you can move away from the cumulative point but i want to be very clear that doesn't solve the problem with regard to whether the witness should have been allowed to testify that's that's a response of a different nature i would i would respectfully submit your honor though that that's not the issue before this court the issue before this court is whether mr phelps has representation was adversely affected because he abandoned his unrelated case brandon quigley the live in boyfriend of miss mcclellan had testified and he was an even better witness because he claimed to be present when mr hart met with miss mcclellan and he said that he heard him tell her that if she cooperated things would go well for her that's actual testimony that the problem for mr mcclellan was not that one more cumulative witness didn't get to testify the problem was the jury considered this and they didn't buy did mr phelps brought it attempted a second time to call her and he advised the judge that she had conferred with independent counsel and still wanted to testify and that's and this second  agree with the judge and follow the judge's proceeded by getting your independent counsel and still a judge would not allow this holes from to testify so therefore it was not a conflict that that phelps had  what you said i would agree with one hundred percent it also has to be remembered that but for the joint representation most mclellan would have had no access to wholesome potential testimony that's the only way she knew of the confidential information the holes from had because of the joint representation this is exactly like the met case if it was a benefit of the joint representation which she allowed to present in the family it was confidential attorney client privilege information she wouldn't have had access to otherwise had holstrom been represented by independent counsel the say somebody totally unrelated to so that doesn't guarantee that holstrom would have testified she still had a fit and then privilege i'll reserve the rest of my time we've used it will give you a minute anyway use a tissue during an argument for other purposes i present to you i'm going to jennifer mcclellan that the state of the government this without merit and has not risen to the level of showing clear air trial level and i'm somewhat excerpts of record is that in the district court record i i believe is in that isn't a district court trial transcript we have whatever is in the district court record is part of our record even if it's not in the excerpts then i draw the course attention to on page one eighty five and i understand the transcript the court is asking of mister phelps and they're talking about this problem of the conflict and number holes from coming to testify in court says on line six as i have page all right judge i could let her go home then and maybe get her tomorrow morning or something like that court yeah that's is what i would suggest clearly the way that is in excerpts of record vs thirteen fifty responsibility not to have a conflict with his client and his responsibility required at this point in time that he the judge is saying to you mr phelps you better bring her lawyer in here those holes from lawyer in here and assure me that she is in fact waiving her right of self from a nation of the fifth amendment right against self incrimination before i'm going to let her testify well mr phelps who is representing her in the state action and mr  the record reflects mr phelps had made a memorandum to the state court saying that there was no actual conflict that he could stay as her attorney was there an actual conflict i can't find it well i disagree your honor the actual conflict is there because you see  entitled to undivided loyalty of her of her attorney and prejudice is like yes but you know i used to practice law i had to have more than one client a time to make a living and make people understand a lawyer has as an obligation one of out of loyalty but of other clients to the question becomes whether those other clients have conflicts and i can't find it here seems to me that that these two people had interests that were exactly parallel there the conflict is that in them we in the federal action needs the testimony of norma holstrom as a part of the impeachment of a law enforcement officer your experience is the same as mine if you're going to impeach a law enforcement officer you just simply can't go in and say he said she said no you have to come forward because the jury is going to give more credibility to a police officer as i think we know that from our common experience the burden is on the defendant the burden is on jennifer mcclelland to go in there with all her guns loaded and her powder dry and she's got to go in there with every ounce of evidence she can come to muster to rebut this coerced confession and the testimony of lance hart it is clear from these witnesses that he did have and i that what we need to buy onto is that the defendant is going to be benefited by having this additional witness testimony i think the answer to that is plainly yes i go back to the question of what the conflict was and maybe a step beyond that judge properly concerned about a witness in a concert who is facing from pending criminal charges and state court wants to make sure that witness understands what's happening in this not like the elegant case where the witnesses in effect pleading guilty on the stand perhaps without realizing it but the judge doesn't know exactly what she's going to say so he wants to make sure she's got independent counsels the way that she went i think there are other things the district court could do to the pro prospective witness understand but what's the conflict what we're selves in conflict by not by by representing both these people because phelps wants to use for his client mcclellan needs this witness and mcclellan and look at phelps is the center of the hubbub we'll we have the state action we have helped in the middle we have mcclelland in the federal election down below and we have been in here those arrows are going both ways and we have over here signed an affidavit in the second or third day of the trial the talk about her understanding and such that she can testify in this they'd actually are and then we have holstrom who is coming into court without the benefit of counsel  cannot get through this because phelps is the person who's in control of it and also the real problem is the district judges the person is in control of it and he doesn't level from testified and and if you recognize in his own memorandum opinion  noted that he indicated on exhibit l page nine of his memorandum pinion he candidly pointed out in his memory and in that it upon reflection he should have inquired further into the problem that was being presented to him and jennifer mcclelland understanding that she was involved in an actual conflict not a potential one it was an actual conflict because mr phelps has an undivided duty to her and all he has to do is to make sure the whole storm is getting him to testify and he has the conflict going back and forth because he's trying to represent her in the state court and saying there's no act there's no conflict and clearly there is a problem with with in federal court was that she would have to get up on the stand and testify as to the confession she is made to heart whereas if you were prosecutor in sequence you could say off the stand and not meant that she made state not all excellent observation and she was so willing to waive that right because in both of these cases lance hart's modus operandi assigned well but she needed to have independent counsel so said the judge that is the conflict and jennifer mccollum by the rule of law is entitle to the un i'm sorry i think the conflict has potential and that's what that's what judge bayless help point out it was the tension she had to take the stand before the conflict actual when it didn't over her and jennifer mcclellan needed that testimony and perhaps others if we can because i think it will be when lee pointed out in this trial that there was no physical evidence to support the co i think we understand your case unless you do have something for the want to communicate i think our discussion tells me that you have you do understand our position would point out to the court that the judge's exclusion of miss holes from this being cumulative is not an issue before this court this mcclellan had a direct appeal she did not raise that trump phelps tried to put holes from on the stand the first time the judge says i don't want her to testify unless she has independent counsel mr phelps took care of that the second time he tried to call or he said you honor she's out in the hallway she's conferred with independent counsel she still wants to testify on that occasion the judge made two observations he said he said isn't what she's testifying about isn't it cumulative haven't you already had a witness marianne henshaw testify about the same thing and the other thing he said was i actually want to talk to her independent counsel so what the judge was requiring when now the only evidence we have of record as to how this matter was finally resolved came from the testimony of douglas phelps at the twenty two fifty five hearing he testified that the next day there was a a a meeting a hearing if you will and chambers where the off the record and which they court ultimately rules that she was a cumulative witness and just avoided a conflict of interest the issue in the fifth amendment issue altogether he testified to that effect now the prosecutor nancy cook she did not testify at the hearing but she put on the record her recollection which it's obvious she agreed with mr phelps and she said that after this chambers meeting she requested that the results of that be placed on her and that never occurred that wasn't done well i felt testified that that there this was taken up again not this was taken out he testified that she's out my hallway with counsel she's raised to testify that doesn't mean the judge talked independent counsel later run off the record i'm going to sustain the objection and i'm going to lower testify fishies kuma that that's not on the record but my question to you and maybe there isn't any record of this did the judge talk to independent counsel your honor my understanding is that the next morning independent counsel was there for the purpose of answering a hallway or in the courtroom well independent coun this witness cumulative and if she is going to testify i want to talk to independent counsel phelps testified that the judge by the next day just said witnesses is cumulative we're not she's not going to take the stand but that ruling you know which would be in the discretion of the trial judge it would be an abuse of discretion an issue before this court that issue is not before this court the issue is whether mr phelps had an actual conflict of interest which i cannot fault your reasoning in that regard but again the trial judge is that ruling is not before this court has read it's not before us but when we look to see if there was a conflict and we see that the person who could  i've detected it again this morning and counsel's argument is confusion over what an actual conflict is the supreme court in this down in the mickens case an actual conflict is a conflict that adversely affects councils performance which means a significant worsening according to the met case that's what an actual conflict is if there is no adverse effect there is no actual conflict of the adverse effect was the phelps didn't produce the independent counsel in the court room to testify when judge first has four well that's not in the record your honor i made the first the judge was really asked that she consult with independent coun