thank you just a statement that afternoon your honour's my name is charles hoffman i represent the appellant elliot murphy after i was assigned to represent mr murphy and its appeal i learned that macon county assistant public defender howard randy baker who represented mr murphy trial and sentencing in this case had also represented an individual named sean stanley who turned out to be a witness for the prosecution at elliot previous trial when i researched whether this interest existed in this case that required reversal and remain for a new trial without any showing of prejudice and in fact it seemed so clear to me and i thought it was important it made sense to bring this issue to th court's attention as soon as possible so rather than continue to find out what other issues make sister right or reason to litigate this case over the course of the next year or longer i filed a motion for summary reversal agreement which is coming before this court i understand this is not the usual practice in most cases in which our agency is involved it's very rare but i do want to point out that the state has not disputed any of the factual assertions that we rely on nor has the state supreme court and feels the state's wrong because fields and dobson simply involve different types of per se conflicts in fields the alleged conflict was based on defense counsel's prior representation of a state witness and because the representation there was only prior and it wasn't contemporaneous the defendant in that case was forced to try and say that the state witness was and to the assisting the prosecution they had to try  you know around peg into a square hole in the supreme court said no a state's witness is not intensity of assisting the prosecution in doxygen the conflict was not based on prior representation of an the assisting the prosecution it was based on a defense counsel's contemporaneous representation of a state's witness which is the second type of conflict in the black letter conflict law when arguing that feels undermined  n the state seizes on one passage and dobson in which this court if i might say a bit on are you know are fully describe the conflict as representing one between defense counsel and assisting the prosecution  but actually in fact that was not the type of conflict involved passing clearly involved a conflict between if based on defense counsel's contemporaneous representation of a state's witness and the crucial not whether the state's witness was an entity assisting the prosecution which was the crucial question fields the crucial holding in boston was whether the definition of contemporaneous representation which appears in both types of conflicts requires defense counsel to be representing the state's witness at the time of the defendant's trial and in dyson this court clearly and unanimously rejected that argument and we've all right absolutely you are right what is field say about i don't believe that feels dealt with the question of contemporaneous representation because in that case there w only prior representation defense counsel representation of the state's witness in the case and years before the defendant's trial in the case so the definition of contemporaneous didn't come up however in fields while the court was describing the conflict state they basically stream cited a number of cases in which the language used is a conflict exists when defense counsel contemporaneously engages in representation of the state witness and representation of the defendant if you look at all the cases that field cite including feels itself the word at the time of trial never hears the probably the most accurate term would be overlapping representation and clearly it doesn't need to be at the time of the defendant's trial because the problem is whether or not defense counsel represented the witness the prosecution witness and his client at the same time doesn't matter just before trial because when counsel does that at the same time all of the justifications for personal conflict  present are confidential privileged communications divided loyalties adverse interests i'm so the repeat it doesn't need to be at the time of trial and as that's pass an extensive lee discussed the privilege that exists between any communications that defense counsel had with his former client and current prosecution witness those are smith the guy just represented is supposedly one of the key witnesses to the shooting at the tavern parking lot and smith supposedly saw what happened all the rest of it is going to be an important witness for the ago why wouldn't all of these concerns about information gained privilege from asia and the possible conflict how this could be used why we don't recognize that you have any problem there's no what they say i don't know if that's what they say i know there are a lot of cases that talk about the defense counsel not representing no longer representing the state's witness at the time of trial but i think that language is simply based on the fact of those case but the fact was defense counsel wasn't representing the witness at the time trial so i don't think they've drawn headline well let me think more explicit this if i just gave you cases over just one justification for the person conflict rule there are others as i mentioned before conflicting loyalties if you it seems to me have to read the case law that the per se conflict rule really in a way i don't mean to be confusing the car kind of works backwards if you look at the definition and the court said here's the definition of a person a conflict one of which is contemporaneous representation of the state witness if you have the per se conflict you don't have to show prejudice why don't you have to show prejudice because you don't know what you don't know these are the situations that lend themselves to among the most to problems to conflicts to adverse loyalties to conflicting interests if you look at this case this case is very different from your hypothetical justice cited in this case mr baker represented elliott murphy first he was then told explicitly by the state sean stanley a prosecution witness that came out of discovery so he knew sean stanley was a witness against elliott murphy when he took down representation of john stanley a perfect example of conflicting loyalties and again but the justifications for the rule the reasons for the rule don't necessarily have to show up in each case it's just the situations there are examples of where the potential for problems or be greatest and if you look at this case look what happened because there was overlapping representation because mr baker represented both elliott murphy and sean stanley at the same time what happened he was representing  and only april tenth two thousand and ten and at that time he represented john stanley his guilty plea proceed now at that time at that exact moment it was in the best interests of his client eliot murphy that sean stanley be convicted of everything he was charged with so that the impeachment of him at elliott murphy's inevitable trial i would be the greatest he would want to tell the jurors this guy was convicted of murder armed violence he's a terrible criminal shouldn't believe a word he says at the same time it's in the best interests of his client sean stanley to be convicted of the least number of crimes so that he would do the least time a perfect example of a situation where overlapping contemporaneous representation creates a conflict now i don't know but you actually have to have that because the per se conflict rule is this court when found at length and examples of the problems of the case why the confidential informant had adverse or white house all had a conflict because of the fact that the state's witnesses confidential informant side of the defendant but each time discordant babson said look here's the justification for the rule here's the justification for the rule but of course we don't need any of that because the per se conflict rule requires reversal without prejudice so when supreme court case losses contemporaneous representation they've never said at the time of the defendant's trial it's always represents the diff represents the witness while representing to defend so your position is  refuse trial and the conflict had been revealed between the time of the motion to suppress and the trial of the conflict have been revealed i think mr murphy would have been titled to another's suppression hearing absolutely  the other thing that is important in this case to know is that mr baker had an ethical duty to reveal the conflict based on hernandez and tyler solomon and  think the fact that he didn't i think shows that this court has to be vigilant in looking at cases determining whether there are conflicts from the  facts unfortunately i don't know why the conflict wasn't revealed up but i don't think that really matters the point is based on this court in babson which it was consistent with law this court relied on its previous decision in daily which said we don't rely on the strict technicalities of the law and as this court said it absent it would it would be too far too narrow that will result in a far too narrow present conflict if you have to represent the defended both at the time of trial and if you think about it just a statement the day the trial starts the day before the trial starts a week before the trial starts two weeks where do you draw the line i don't think it's possible to draw a line which is why the per resolved by conflicted counsel in this case the overlap is twenty six weeks and some very significant things happened while mr baker represented both these clients as i pointed out before he served two masters ranger at the scene they were inconsistent with stanley subsequent and rather lengthy statement to the detective which incriminated elliot murphy that's all he did he didn't impeach him with that conviction at all didn't mention it didn't bring it up i believe there is some case law in conflict that talks about how a lawyer might hesitate to bring up before a jury that he represented or to bring up a prior conviction of a witness in order to impeach him and shot how unbelievably he is and then have a come out by the prosecutor but that lawyer for the defendant was the same guy who represented the witness those are exactly the types of potential problems that the courts can't tolerate which is why there are the per se conflict rule and conclusion our feeling is the sooner this constitutional lawyer is corrected the better the better for mr murphy the better for the people of the state of illinois and not in the best interest of justice and so we've asked this court to grant our motion for summary relief but of course in the alternative if this court denies it we ask that the court order the matter to proceed to full briefing  actually means overlapping and cites this court's decision in topsail and the state does agree that there is some overlap in terms of what happens when the defendant is charged with a crime and has  in november of two thousand and nine and repairs for him the next month as white as representing stanley but stanley's case is over by april two thousand and ten and that's sixteenth months before defendants trial in august two thousand doesn't seem likely because he didn't testify he said he didn't say anything under this name in his nickname was fuzzy and everything else he did not know so he's actually said that he and i think i don't know anything which wasn't just of this testimony on somebody that there that for several very significant for us at the same time both cases were going before the defense struck his it your position that they care is doing so doesn't matter for conflict war then it shouldn't be even an issue when it gets down to case the psych like cunningham bradford and shaffer which all refuse to find actual conflict of interests in cases in which there could have privileged information as being important reason not to limits the scope of her state i'm place is misplaced because there are cases of extent always back to  will suppose that's the case but that's only one thing that's only one reason but there could be conflicts divided while it's confidential information can be made there are other you know you're the one who represented him when he was convicted and now you're i mean how does that play determine the jury but that would be how do you cross examine the witness if you had a prior both confidential a confidential relationship was but a relationship in which you were to be there to get now you're the advocate for somebody else and you're attempting to peach the individual you previously represent ok and you represented down at the very same time that you were representing the family you know it's not contemporaneous try right right but again it's the same interests it's exists whether there was any overlapping interest to what could be as simple as a minor witness who had almost nothing to do with the case who's represented for one day and then nowhere recognized he had a conflict and he got out while there was the overlapping  n and in that case there is some language i think inquiries that mention that that the attorney there did not represent the witness ramos at the time of florida's trial so good there's a distinction that they're not representing the witness after time of the and in florence there was no actual conflict of interest because they said there was nothing they could really trust impeached the witness about that applies here as well because really this offense cannot realistically cross examine witness sean stanley about his prior convictions because he just got done saying he didn't remember anything so to impeach that testimony would allow the jury to then tend to believe what he had accused the defendant of when he talked was involved in the same crime as the defendant who's being tried but yet in their case there is no per se conflict they apply the multiple representation rule that applies for pope and it so this court would be essentially granting a stronger believe to defend it in a situation promise to testify in this case i think that we have a super duper person but the fact that we don't have that doesn't mean that we still don't have a personal conflict because of contemporaneous representation on there's just no we let me follow up on that  if if the witness didn't have anything to say we're worse bot it's not true that the witness had nothing to say what's true is the witness kind of the witness stand and direct examination said seriously incriminated mr murphy in this case in which he described mr mercer murphy as one of the main perpetrators of the crime for which mr murphy was on trial that makes him a witness we sighted people versus thomas from the only supreme court in which the court said just because a witness says i don't remember doesn't mean that witness is not for the purposes of the person a catholic rule a prosecution witness we have there and we also have this guy his his statement to the detective coming in as substantive evidence there's no reason for our defense counsel not to impeach him with his prior convictions thinking oh i'll just be impeaching his his lack of memory that's not true how could you there oh well i think you i think the objection might be sustained by i don't think that there is the cynic went out of the problem the problem is defense counsel might be hesitant to bring out the fact that he had represented the witness because here i'm defense counsel i represented that witness of the same time i represent the defendant am i going to expose myself in the middle of trial having a conflict of interest so i think it's not just  the problem judge hell lot of these cases isn't the the question gets asked it's the questions that don't get asked is this court pointed out in caps and many of the problems related with per se conflict have to do with omissions we can't show what was omitted from a case and i think that's that's one area even if the question even if the answer was a relevant question may not be allowed the defense counsel might be hesitant to even impeach the witness  such a great job up you you bring that out you impeach him with a prior you know the jury's going to be instructed that that goes to his credibility and you argue to the jury this guy is not credible he's a convicted felon i don't believe anything he says don't believe he doesn't we don't know and unfortunately jurors may speculate maybe he's afraid of maybe he's not testifying because he fears this person is charged with murder they might write so i'm i don't understand why counsel been impeached this witness with his prior the per se conflict that you have to show an actual conflict and as you brought out a few minutes ago just a statement in the fields case they string cited a number of cases and this is what they say the lies were defense counsel has previously represented a prosecution witness per se conflict exists if the relationship between the defense attorney witnesses contemporaneous with defense counsel's representation of the defendant they say thomas contemporaneous with defense counsel's representation of defendant flores as the state relied on contemporaneous with counsel's representation of the defendant in none of those cases did they say at the time of trial and as i previously how can you draw an arbitrary line like that is it the first day of trial the day if the conflict is naproxen the attention of the trial judge who can then decide which if this lawyer has to get out the case that lawyer has to get out of the case if it's not brought to the attention of the trial judge then if the defendant has the burden to prove an actual conflict but it's not a they're waiting for their make up again there may not be a peculiar interest but because we have overlapping representation of these two clients at the same time who had conflicting interests counsel was stuck with having divided loyalties and i think i can explain why the contemporaneous rule doesn't require defendants of counsel representing  contemporaneous has lengthened that and dobson and that was the gist of this court's holding if this court was only dealing with the prior representation of an entity assisting the prosecution there would have been no need for this court to even use the word contemporaneous and that it could have just said there was prior representation