good morning our first case on the call the docket today wednesday may sixteenth two thousand and twelve is agenda number four case number one one two four three eight people versus fields  thank you and may please the court assistant attorney general michael blinken high on behalf of the people the appellate court majority in this case reversed defendant's conviction because defense counsel would previous on the theory that defense counsel who had previously represented a prosecution witness at a per se conflict of the appellate court recognize that that this court has rejected per se conflict claims unless the defendant can show that the representation of the witness was contemporaneous with counsel's representation of the defendant but the appellate court found that those cases were distinguishable because they had not addressed whether a prosecution witness could be considered an entity assisting the prosecution because the answer to that question is no and because defendants arguments for  judgment or otherwise without merit this court should reverse like to discuss two issues this morning first of that the per se conflict rule as applied to cases involving past representation of prosecution witnesses and second that the per se rule as applied to entities assisting the prosecution this court's cases are clear that a person a conflict of interest requires evidence that defense counsel contemporaneously represents a prosecution witness and the defendant that was that  this course holding and people versus enough people versus florida's as his question do their cases explain the policy reasons or two different standards why why is it significant was in pass or contemporaneous with the trial sure there are a number of reasons first when counsel contemporaneously represents the witness and the defendant account there's a greater risk that the attorney will will be truly torn between competing professional interests this case this court's decision people versus thomas is a good example where the defendant defense counsel represented one of the prosecution's witnesses and for once an obvious area of cross examination because  witness was her clients and the court suggested that well the defense counsel had a potential peculiar interest in foregoing that area of cross examination so to avoid or to ensure future business from that client the attorney might have foregone that area of impeachment additionally the lawyer and the court so this court recognized that defense counsel in that case might have foregone that impeachment because it would have been damaging to the witness in the witnesses pending criminal case where the defense counsel is also representing her so in when there's a contemporaneous representation there's a greater risk of conflict in professional interests but when the representation has ended the basis for the for the potential conflict would be the have the lawyer having gained privileged information from the past representation and will that could that be used in the current case but will the lawyer not do it because of his obligation to keep that information seek privilege but to create a person a conflict rule on the ground that a look soley on the ground that the lawyer possesses confidential information about the witness is is too speculative because in not every case is the information from the past is going to be relevant for the current case there's just too many it's just that the kinds of cases that a lawyer can represent a client in  buried and too numerous to say that well the lawyer has confidential information about that client and we're going to recognize that a person a conflict rule forbidding any representation when that's the case and so in the in this court's cases we're dealing with past representation of the prosecution witnesses the court has it's clear that the per se conflict rule has the question is what facts about defense counsel status by themselves engender the disabling conflict and so a court addressing such a claim has to address two questions whom did counsel represent and when and it's a very narrow back specific inquiry and as this court noted in hernandez it fosters uniformity of results and easy and easy administer ability in in each case whether the defendants propose modifications to the per se conflict rule compromise all of those  objectives and they're also inconsistent with this court's cases the defense suggests that the rule should be modified if the witness is depending on the witnesses importance to the prosecution's case  this court's precedents and don't discuss the importance of a prosecution witness and in fact in people versus inox you know the defense counsel had previously represented one of the main witnesses in the case and this court's holding that there was no per se conflict turned on the absence of the contemporaneous professional relationship not on that witnesses importance of the case the defendant also suggests that here new per se conflict rule should be recognized because the per se conflict rule involving a victim has to be the victim of the defendant's alleged offense and in this case the prosecution witness c s was not the victim of the offenses charged in the case and go and go into this court's cases namely people versus washington people versus loss and the best understanding of an entity assisting the prosecution would be an organization that because it's working hand in hand with a prosecution either in developing generating evidence for trial explaining evidence at trial or otherwise helping the prosecution make its case that organization has has a professional stake in the outcome of the litigation  and so there's two there's two distinctions between it such an organization the police the municipality in washington and a prosecution witness first the the municipality in washington was working with the prosecution to develop its case police officers from the municipality had arrested the defendant and testified against him at a pretrial suppression hearing so it's not just offering helpful testimony it's assisting the prosecution helping them make their case and present it to the jury in this the second distinction of course is that going back to the sports cases entity the court has used the term entity only to refer to a m ality and it's used the term the rather per se conflict cases in distinction to a person so the court has said time and again that the per se conflict rule derives from defense counsel's tied to a person or entity that has some kind of game some kind of benefit from the conviction so the fact that the court is using the the two terms person entity side by side signals that entity can't possibly mean a person or prosecution and going back to the nature of the sports per se conflict rule the person conflict rule is a narrow exception to the general sixth amendment requirements that a defense that a defendant show deficient performance and prejudice to obtain a new trial there one exception to that rule is for cases involving actual conflicts of interest where the burden is on the defendant to show an actual conflict that adversely affects the performance but the per se conflict rule goes even narrower excuse me even further exempt in the defendant from making any showing whatsoever that there that councils performance might have been affected by a conflict all defendant has to do is point to a pastor current professional tie to a witness the victim or the prosecution and his relief from showing making any kind of showing of whether that performance adversely affected the trial i haven't completed any research  research on cases i we do not look at a foreign jurisdictions and just we just looked at all my cases but i'm sorry if you could repeat you said the foreign cases say that per se conflicts but the defendant still has it still available to the defendant to make an actual conflict claim and that's generally how this court has treated cases where where there's a past representation or prosecution witness the court  said we're not going to speculate that the lawyer possessed confidential information that could have been helpful at trial but that wasn't used given the counsel's professional obligations the court has made has put the burden on the defendant to show that such information existed and that the failure to use it created an actual conflict of interest infer no further questions at this point i would say the remainder my comments for a bottle thank you counsel for the a good morning your honor some may please the court until my name is one stroke and i represent the defendant albert fields now as you know the appropriate below held that defendants trial attorney had a per se conflict of interest where he had served as a guardian ad litum  unrelated juvenile matter for c s who testified at defendant's trial as a prior victim of defended as a propensity witness now our position is that although we believe the appellate court's reasoning was correct even setting aside its reasoning its decision can be affirmed on other grounds now the statements in earlier that there are there are of course actual per se conflicts this case only concerns per se conflicts where your there's no need to show prejudice are explained that per se treatment is warranted where counsel has a tie to a person or an entity who would benefit from an unfavorable verdict for the defendant and to that time might subliminally affect counsel's performance  ways that are difficult to detect or to demonstrate we believe those two elements apply to these facts in this case just the unusual sort of facts that we have here with respect to the first element that the court that this co frights or noted the appellate court was of course correct to conclude that c s would have benefited from defendant's conviction and that counsel had a tighter her he served as a guardian ad litum in the prior juvenile matter and she certainly would have benefited she was a prior victim of the defendant she she testified that defendant committed the same offenses against her but in a different county she was in essence the victim in all but name she was not the direct a victim in henry county but she was the victim in rockland county so to that extent she would benefit really the same as the benefit in this case as the as the victim in this case would have benefited furthermore  was concluded he had received a four year sentence and then the case was pending on appeal at the time of her testimony and rock island and henry county in this case how did how does he benefit any more than say members of the  there's some uncertainty as to as to the finality of that conviction but beyond that the state notes that she had suffered nightmares as of defend coming in harming her no defendant were convicted presumably he would have received a much longer sentence than the four year sentence he received in rockland county so he would no longer pose a physical threat or because he would be in prostrated and again presumably those those nightmares would subside or otherwise abate here yes he had a per se conflict there exactly exactly and so there would have been a new trial in that case yes and my question would be the conviction in this case could the witness in this case testify in the retrial as propensity witness and that case i don't i don't believe so i think under spicer i think it would be you know that i'm sorry let me take that back i think i think in that case she could testify because again there is no tie their is no evidence that this child that trial counsel had that tied to the victim in this case there's no evidence that he was  so so i think that there is no prior relationship there's no tie in essence in the words of the sprites or courts are you trying to make some distinction between generally a state's witness and  yes in that case yes definitely because of the fact that as we all know propensity evidence is generally barred because it tends to over persuade a jury but then by statute there are certain very narrow exceptions for certain sexual offenses where they do allow in propensity evidence so we believe in that case she was testifying again that she was the victim of the same offenses just in a different county and then the state used that evidence substantively to say well therefore the defendant here committed those same or the best arguments i suppose at the outset as i mentioned earlier this court is not bound by the reasoning of the lower court it is free to revise or expand its conflicts jurisprudence as the state notes this is developed through case law so th categories the dissent below and i think even actually the majority below termed those three situations as categories this court has never said they were mutually exclusive there's a certain i think there's a certain degree of overlap that's inevitable simply because the fact based inquiry that you need to go into to determine the attorney status with respect to the witness and more than beyond that the first situation is very probably written under that same situation if defense counsel has a prior association with the prosecution well it sounds an awful lot like the third situation where defense counsel was a former prosecutor personally involved in the defendant's prosecution so it sounds like the first one really could even there's an argument that he made at the first one he could even render supreme superfluities the third situation so i think in that respect there are there is a certain degree of overlap with respect to whether an association and representation are or whether an association necessarily includes all types of representation i don't know that i would agree with that because a representation to me is far more formal and implies greater obligations and duties than an association where it seems far more of a casual relationship so i i don't the short answer to your question is no i don't believe it would render superfluous the the second category  no i guess turning briefly to these seconds elements with respect to spicer that was whether but there this time i that trial counsel had with c s might subliminally effect his ability his performance in ways that the record when shall we believe that's clearly present here again defense counsel's prior representation of c s as regarding the bite i'm exposed to confidential information what kind of confidential information it is we really don't know however from the rock island county case we do know that it concerned c s his mother so much that she was the one who contacted the states she was alarmed by the fact that trial counsel was who had been her daughter's starting and lied and was now defense counsel in rock island county so she was the one who took it upon herself because of her concern to contact the state and at that point then the state alerted the trial court in rockland county and discus our position is that it would have inhibited his ability to cross examine her but how would he have it that if he can't use the confidential information that no one else had well i suppose that well beyond that he  he was also her guardian ad litum it was in her attorney for say a theft case and as a guardian ad litum his duty his paramount duty was to look after her best interests and we believe that it's when you it's a different mate it's a different sort of relationship when he's looking after her best interests that at one point he's trying to look after these best interests is trying to do its best for her and then here on cross examination is to tear down her credibility or expose her bias i think that at least subliminally would have affected his performance and moreover we're we think that it's possible that the state would benefit from application of this of these two elements and sprites or to these this unusual set  facts because of the fact that it's possible that c b s may have been a little bit more forthcoming with with trial counsel because of the fact that he had previously been looking after her best interests whenever that juvenile matter had terminated and presumably the court i'm not entirely familiar how that works but i'm guessing that the court would make some sort of formal announcement or some sort of indication that the jail relationship would have ended at while it's true that any attorney wouldn't be able to use the information on cross examination we think that having this additional information it would've prevented him if he subliminally from just effectively cross examining the requirements that i i'm not entirely certain but i believe just looking when i looked briefly at the statute my understanding is that because of the fact that his responsibilities were for the best interests of the child he did he did not have any duty to perform at her direction so he had to look after her best interests and i think that would imply that if during the course he may have to disclose that confidential information during the course of the juvenile matter well i think in this case the fact that he was a guardian ad litum does heighten the the concern simply because of the fact that here he had to look after this best interest perhaps this child i believe she was seven at the time of the guardianship there is a different sort of relationship one she looked when he was in some attorney defending her in a battery case or retail fact it was someone who is who is hired to look after  best interests and i think that that's a little bit of a different sort of relationship than a normal a typical attorney client relationship with respect to whether any we do not believe that every that every state's witness the representation of the state's witness would necessarily raise a per se conflict we think that just simply this should be some facts that should be brought out in the trial court just to determine the status of that of the defen prosecution make of the prior representation right he was his representation of her as a jail according to what he stated in the rock island county court was it terminated either  thousand and two or two thousand and three so in this case again we do believe the appellate court was correct is fine that she was an entity assisting the prosecution but again this court if this court were to find th is free to simply say that well in this case she was testifying as a prior victim the same offenses that's really again she's a victim in all but name so that would satisfy a prior relationship with the victim or it i think i don't know that i would necessarily want to put a time limit on it and on it in all candor i think that just the nature of the information that he received in the fact that there was a g l relationship president changes things quite a bit and i think it is something that's that is continuing so i think it would be very difficult for him to represent defense count represent a defendant and then also have this prior guardianship this witness where he was a prior guardian testify unless of course the guardian is willing to it unless of course the defense is willing to waive that potential conflict on the record or perhaps i suppose maybe if the guardian were again we don't there's nothing and then when i was looking at the rule twenty three order in the rock island county court there's nothing really to indicate that that and then of course then you kind of quote there's nothing in the record whatsoever to indicate the nature of the relationship whether that's correct that's correct that's correct  well again as i mentioned if i could just mention very briefly again we do believe that the park course raising was correct notwithstanding the fact that this court is free to disregard it and recognize either new situation or to analogize the situation as that of a victim the appellate court did not find any case law defining entity it did i think it was natural it just turned to a dictionary and that's something that is done typically in statutory construction but i don't think that's something that's necessarily inappropriate here and again the fact that it found that she was an entity assisting the prosecution was shared by the fourth district recently and people be dops and so we think that has perhaps further weight supporting the appellate court's reasoning i'm not sure if there are any further questions or concerns i can address you just want to briefly conclude see my time is almost up on again we're not claiming that all witnesses create a per se conflict we just believe that the facts of this case the unusual facts of this case want to holding that defense trial attorney had a person a conflict of interest again where he had served as the guardian ad litum in a prior unrelated to the matter of the witness who testified as the prior victim defended the same offenses so specifically we respectfully request that this court affirm that decision of the appellate court thank you very much for your consideration thank you thank you even if the court accept that the facts of this case are somewhat unusual the law that gets should cover them is not unusual this court has been very clear that prior representation of a prosecution witness is not a per se conflict of interest and contrary to the defendant suggestion the court has used the term category and not just situation to define or to to define those or say conflicts and that's in people versus hernandez and you heard much from the from from the defendant regarding gaps in the record and rather than trying to fill those gaps defense counsel is asking that the per se conflict rule be broadened to far beyond its contours at the present time the defense also suggests that the court should view c s as a beneficiary of the guilty verdict but this court has never treated the rationale for the per se conflict rule as an independent source for finding a per se conflict rather the court has limited the inquiry to whom meyer you asked regarding about the prior representation of an entity assisting the prosecution so even if this court finds that a better prosecution witness can be an entity assisting the prosecution this court has never held that up such a prior representation creates a person a conflict of interest as we've explained in our briefs that this court's language in hernandez and taylor two cases that did not involve an entity assisting the prosecution were over dicta because the facts weren't before the facts are that those cases didn't involve an entity those issues weren't necessarily briefed by the parties and that that language was not necessary to the court's decision justice tice you asked about if the defendant the c s s testimony in this case could be used as propensity evidence in a retrial provided that the judgment here was affirms disc c s could testify as a propensity witness in the retrial in the 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