morning is what was counsel i think lee and professionally compelled to refrain from doing for nelson because of their joint representation of paul conflict of interest arises not in presenting strategies chosen by defense counsel but in selecting defenses and strategies in the first place i jointly representing nelson after nelson had implicated hall counsel were compromise defense counsel went without justification defense self defense defense of others justifiable use of deadly force in defense of person requires an imminent threat of death or great bodily harm nelson t roslyn he was pushing and poking them but he was on his knees when he was stabbed she placed the blame on all hall went after him when everyone else said no she didn't know i'll stab him she told how to stop this is a possible alternative defense nelson statement make clear that hall was driving this entire series of events she told all the stop three times before they even reached rhys wilson she only hit wilson after he tackled her pregnant friend ross and paul wilson responded by poking him pushing them back but self defense was a clear line between deadly and non deadly force there was no deadly force for most and paul's use of deadly force therefore wasn't justified a defense based on this statement is inherently conflict with holes interest because a two part answer that first is it doesn't make a difference but two theories weren't pursued it doesn't make a difference because sullivan on the question isn't about what council did the question is whether there was an adverse effect from a conflict and sullivan says an attorney cannot adequately comply with the sixth amendment while actively representing conflicting interests so it's about it isn't about the actual defense as it played out the trial  these are these are the affirmative defenses raised by the defendants these are the theories of defense raised by the defendants and then at the very end he said oh i should mention before concluding i took into consideration the law mokoena billy but he gave general statements well the it's the it reflects the fact that if the judge mentioned the other defenses as the fences that were raised but never mentioned not accountability it undercuts the state argument that now accountability was was raised it it but on top of that an examination of closing argument also shows that i counsel  so really blaming home placing the blame on hall so to phrase it as you know right to have that defense presented by itself isn't isn't exactly what we're getting at was that focuses on what was done as opposed to where the conflict arose in the would be capable of making a choice in this case though counsel didn't pursue not a company based on the statement counsel did wilson which benefits hall and then said that nelson wasn't accountable because she had left the courtyard by then but that wasn't supported by the evidence now submitted being next to hall when she saw looked over and saw that she was stabbing because she said she reached over and tried to take the kni last thing the very last thing that counsel said in closing argument was that i would ask that if anything you render a verdict of second degree self defense defense of others or involuntary manslaughter and nothing duty to haul the counsel had went beyond not just just not providing assistance to the prosecution an example of this is that chinese are barred from saying negative things about their clients in the media but it doesn't matter if that would you know and his attorney also represented a mini pots in state court on murder charges so those that was a separate matter not even the same court state and federal but nicholson had made statements saying that he had take had the cases but it's the same kind of thing completely different forms and yet you know the court noted you just can't act at first your client's interest because there's an inherent conflict here that this court can use and that we believe would be a good standard for this court to adopt because it requires the defendant to out you know to clearly identify a plausible alternative defense that could have been the the test was adopted there's an additional component that nichols and the west court use speech versus people colorado supreme court but i dual representation you know annoying and for that matter of federal law either also in principle there is no dispute between the parties as to the general analysis to be employed in a case of actual conflict we agree that represented by the same attorney and to the conflict adversity affected her lawyers performance we also agree that as noted in the seven circuits case of taylor versus ground illinois law can no longer support the rule a lawyer presents a viable defense there can be no actual conflict even if he forewent another defense this is no longer good law must be abandoned this complex rule was set forth in this court's bears the burden of proving one that is attorney made a decision to forego a viable defense potentially helpful to the defendant but would have heard his codefendant and two that the decision to  this viable defense was tied to the dual representation the court went on to note that add to this let latter point to defend him a show a nexus between the decision to abandon a viable defense and the conflict itself they stated put another way the defendant must show that his attorney was influenced by the conflict by making basic strategic decisions in an admirer in a manner that is adverse to the defend defendant now seeks to repudiate taylor versus grounds because the last portion of the analysis is not necessary and in the defendant's estimation is contrary to karla vs song but your honour's is actually the defendant's position is that is problematic for instance if the defendant is correct that we never explore the attorney's actual motivation to forego a defense then this factual scenario an attorney representing adverse interest for whatever reason for going to viable defense is presumptively deficient it is akin to a per se conflict because defendants proposed analysis fails to take into account any actual legitimate reason that this tourney might have to forgo this defense it elevates the scenario to a prohibited representation just like a per se conflict only recognized by this court instead people versus rights or this is virtually every joint representation treaty multiple representation is created a person a conflict would put an end to multiple representation all together since it's a possible conflict and hears in almost every instance of multiple representation and a per se rule would preclude multiple representation even in cases where a common defense give first the defendant now agrees that her attorney presented the the alternative viable defense which would have been accountability in other words so there was no defense of bandon or for going on here she does it was presented and he argued the evidence that we have in the record about the fact that this was a fully developed defense we see when her defense counsel asked to consider show that carmelita ha herself admits to being the sole stabber in this case and again it shows that these defense you know that her attorneys the defendant attorneys are are are acting in her own best interest admitting that she did the stabbing that's her defense but she's saying one i was justified to that my crime should be mitigated to second degree murder or involuntary manslaughter so the defend it when she argues that she's not accountable for carlie to ha's actions she's not hurting carmelita hols interests at all because pursuant to her self defense she's already admitted this crime development of defense is unnecessary at a bench trial because you have a judge and we can presume that the judge knows the law that is this that is the basis illinois law that a bench trial goes into and it is very common in a bench trial situation to have inconsistent offenses oh or arguing in the alternative you know it is just this would be developed differently if you had twelve lay people in front of you where you had to explain accountability  that's precisely why eccles is no longer a good lawyer honor because it just because there's no conflict that manifests a trial doesn't mean that at the time that they were making the decision there wasn't a situation where conflict may have risen and that's really what solv stands for and and that's my point to your honor that no matter what analysis this court chooses to use this court should use taylor versus grounds the defense still fails because this defen of accountability was presented to the court and now with the reply brief defend it is arguing that it wasn't that it's not satisfactorily raised which this is it goes beyond being an actual conflict of interest law and when you're talking about a defense that's not actually raised you're moving on to a stricklin analysis at that point not actual conflict actual conflict analysis stops when you fil the first factor of college versus all of them now when they sit in the acknowledged that it was not the primary defense and they quote the record for the amount of time that this defense attorney attorney argued about self defense versus accountability now or at prejudice and now it's strickland it is out of actual conflict because it was actually raised her honor and there was three defenses in this case it was lack of accountability her attorney argued that that she was justified and if she was not justified under self defense or defense of others that her crime too should be mitigated to second degree murder or involuntary manslaughter and that was renewed in argument and also we see in page c one ten of the record that this was brought up again in the motion for trial where the defense argued that the evidence indicated that the stabbing of morris wilson who  failed to maintain or burden under the second factor of kaila versa solved and that the decision to for go that of the other viable defense was tied to the dual representation there is no evidence in this record at all your honour's that any decision by defend its attorneys was was tied to dual representation at the senate failed to meet her burden under either factor of solving therefore the defendant has failed to establish an actual conflict of interest and also i want to clarify one point for the record we are not arguing in the least that the sovereign's cured any actual conflict problems we argued merely that the benefit went to the defendant because of this physician as evidence of her guilt and that's an example of where that severance actually benefit her if there are no further questions for those reasons stated in our brief we'd ask that you affirm the defendant's conviction attorney made basic strategic decisions adverse his client's interests that's a strickland analysis the reason that we don't need counsel's reasons here in this case is because the conflict is so apparent from the nature of co defendants where they're blaming each other in statements justify his choice of defense because he couldn't make that choice he wasn't able to do that the the seed mentions that defense counsel asked for hall statements the doctor didn't know or she wasn't there because as i said earlier console me arguments that basically were not consistent with most of the evidence and nelson statement she said you know nelson and walked away by the time the stabbing her that's not true that's of the conflict is illustrated by the way the council argued second degree which is something the state noted counsel argued it intends provocation or mutual combat only time hounslow mentioned imperfect self defense was in reference to  haul when when the whoever the stabber was may have been acting in imperfect self defense but that was just just a one time but when you raise self defense isn't the natural second degree car part of that imperfect self defense as this court knows imperfect self defense requires subjective belief on the part of the defendant that the use of force was necessary which usually would come from someone's testimony any advice counsel gave else and i whether or not to testify is certainly going to be impacted by the conference conflict of interest with hall although the suspense trial it is not true that you don't have to develop any defenses in a bench trial the fact that a judge just presume to know the law doesn't mean that defense counsel doesn't have to make arguments based on the evidence marshalled the evidence and present it in a way that supports the defense favorable to the client to remind the court of some of the appropriate standards when they're not straightforward reasonable doubt