violation of the right to counsel choice c h l hired a lawyer he trusted when the matter was still under investigation and they worked together to prepare for trial for months and in the trial court remove that lawyer right before trial in the absence of any basis for finding that there was a conflict of interest or a serious potential for conflict and it forced upon out a public defender he did not want to advance a strategy he did not want the court clearly violated wheat in making this decision  did it in a few ways kind of the overarching problem being the judge's belief that representations of co defendants was necessarily an ethical problem so with this textbook violation of wheat if this were a kid where the wisconsin court of appeals had simply entered a summary of furman's like they do in california and some other states addressed in harrington versus richter as a serious possibility as judge crocker believe they were then was it reasonable for the trial church to entertain this is the real possibility that the trial judge had an obligation to determine whether it was a real possibility and i mean everybody did certainly treat it as a real possibility because the prosecutor put this man on her witness list but when she answered your question about whether they told the judge she was not likely to be caught of course they wouldn't know that but what what mr krone by there was very clear about is that there was essentially no evidence no arm non privileged evidence that mr bermudez would have had this case and so that really it is at least implicitly saying how could he be called why would he call what would the state be asking about and as the judge is talking about cross examination what in the world would mr kronenberger be cross examining this person about what he has no evidence that wouldn't be covered by his privilege given that she was set up for trial on essential in the same charge but it's opinion doesn't help the state because all of the court of appeals decision does this essentially say the trow court thought about this it gave reasons and therefore it exercised its discretion under we so that just get us back to what the trial judge did because it didn't decide whether those reasons were correct appropriate adequate and in fact they were mostly based gold errors the church thought there was an actual conflict here we know there's not the judge had this idea that any conflict was unbelievable which doesn't even make a lot of sense and  also talked about a number of irrelevant intentional things there was the fact that promote those appeared on the state's witness list but again with no indication of what non privileged rick now of course there is some discretion on how how high to the great degree how high does the potential have to be but it has to be high i mean when the supreme court says a serious potential for conflict you can't read the word serious at that and you can interpret serious as if it's a synonym for like not funny it's more like the standard that this co familiar with from you know the residual clause of various federal sentencing statutes a serious risk of harm it just means a high degree of harm and while certainly the trial judge had some discretion to determine the degree when the court was making that determination his belief was that representation of co defendants simply bill he wasn't trying to make the discretionary call that we required of him not at all and so that just gets us to the wisconsin court of appeals decision again which given what the trial judge did was unreasonable under wheat and so there's here please the court jake will work for the warden and for the state in this case there's been discussion of the reasons that were given for the for the court's discretionary bermuda is would really be called to testify given that he wasn't cooperating and they had a th amendment right you know out there not not to incriminate himself yes and i do think that the record shows that the court did take this issue seriously unit it consider the likelihood of whether he would be called as a witness at at  one point the judge asked him better do you think something to their back you think this is serious is this going to happen and trying to better response that well the state has listed  listed my former client as a witness in the case and so i think that in the case of the court did consider the likelihood of of him being called now the record as district court ably pointed out shows that all of the parties involved in the case and and particularly the new lawyer for for bermuda as so very seriously the prospect that he would be called as a witness we don't know i mean we have benefit of hindsight here that you know all the witnesses they cooperate this follow through their testimony but for some reason this court in this circumstance all of the parties believe that there was a result of possibility that he would be called as witnesses in this case and here the court's reasons all our rationale to support that determination i think that when a state court comes up with a reasonable rationale to support that terminations should be of help and it should be upheld on twenty two  rules were misguided i think and the state appellate court just excepted them all is legitimate i mean we've got to look at a reasonable application that we given the presumption sure and i think that if the if the court of appeals in this case was calm court of appeals had looked at it and determined that some of the reasons weren't valid but some of them were valid as the district court concluded here it would have a firm as that we do have two levels of deference here and and i think that the court of appeals while while it could have done a better job perhaps of of parsing through the reasons that would have ultimately led the attorney to either directly or indirectly implicate his former client in the case would have said the person is the driver that this other person was the driver it would have been logical for him to link in some way using whatever evidence could be found to the to the to his former clients and perhaps he was privileged information to do that the district court said well they were being tried separately so there wouldn't be any sort of ethical problem here well there is an ethical problem because of the allegations that is turning have to his former  state engineer disqualification of the attorney and it's also contrary to the court's explicit statements on the record that that this was this was a beginning when when when pran wetter's said that he that he didn't think he'd be able to stay on because it was too great of a potential for conflict in this case representing both of these co defendants in the same set of was named as a potential witness he realized wow that this conflict could actually become an actual conflict a trial and responded responded by requesting briefing from the parties requesting while challenge might suggest was the draper and none of us know of any links as far as we know there are no links and so this is pure speculation and other thing that the state the court to these hearings i think the reason these hearings went on as long as they did is because it's a trial and his attorney would not let the issue go and say help desperately wanted to go to trial according to the speedy trial statute with the attorney that he had hired and they continued to press the issue and argue the issue long after the judge had essentially told them he made up his mind the the  potential conflict we're talking about here which the state says it's reasonable to think it's serious potential i just want to be clear that what we're talking about is an attorney who represented these two men at the same time time of the trial and he told the court was all candor to the tribunal that during the period he had represented mr perot does he insured not to inquire about matters that might create a conflict later so here there simply was no basis for the trial court's ruling and where you have a legal error by definition that is not an exercise of discretion and certainly where we have a constitutional right on the line it is not an exercise of discretion as required thank you we would ask you to reverse the judgment