this case even though it dates back about twenty years they say and i promise not to belabor the facts but and one of the reason that i know that the court is prepared is not just because of this general preparation stage here but there are a couple of them the specs of the trial that i would like to emphasize and then a i'd like to briefly discuss this court's ruling of the second stage and the subsequent proceedings of the certain stage by the trial the trial matters there are two things that are orange and before going into that i'll briefly introduce the key players in this in this matter the trial attorney and he had been trial attorney for about nine months before the matter the arrangements were between the state and the informant mr very well and asked for discovery about then at the state said that it hadn't yet made an official deal with mr fay hill because  taken and the trial was held two days later in this trial was presided over by judge while at that trial interestingly there was the unusual occurrence of the informant how the two both defendants nado and mr bay hill at talked about the fact that they had the same term and he was asking for some information about the attorney and what mr small who thought he might be able to do for m so we had the important indicator at that time indications that this is the person who he has selected this is a term the other aspect of the trial that is important to note for purposes of this proceeding is that judge class prevented from asking the complainant whether she had been dating a chicago heights police officer the state objected and outside the presence of the jury it was indicated by counsel that it was part of the defense  cross examination of the officer as i just described and an argument that and and had not been proved guilty beyond a reasonable doubt that was handled by private counsel first post convention petition was filed in two thousand the claims were that council had been ineffective for failing to call certain witnesses again this matter of appeared before a judge white who dismissed it summarily at the first stage this court reminded for a second brother with the marion also provided an affidavit during these proceedings ms marion indicated that she had been a roommate with the complainant and that the complainant had said that she had been beaten stating that he had dated the complainant for a four month period and that she had indicated that she was too drunk to know what had happened and didn't recall the the incident this petition was dismissed jurgensen who was effectively withdrawn as is part of the court's consideration because of an indication in the other two witnesses that they had spoken with counsel but that was first private and public under indicated that they had been looking for him they thought they had a phone number one time but he hung up on the caller they thought they had a post office box and stick that out they weren't able  to obtain is presence i'm here mr bagel was briefly not before the court but i believe in the courthouse and counsel for the state and defense were able to offer him i believe this was in two thousand stage that's the opportunity in the language i believe in cleveland was that this is the time where the state is permitted to present rebuttal witnesses the second stage it's all taken as a matter of indicated at one point i believe on the nineteenth when his matter was before the court so right about the same time that this problem was for fatal indicated that he had an attorney but he quit those docket sheets show previously been rejected by the court after that time there is no occurrence by counsel has continued a number of times and ultimately the defendant on his own inner guilty plea and was given the negotiated plea that  know at the third stage after this court had indicated that it saw no reason not call the witnesses because they would serve as an pietschmann witnesses in manhattan this court said that the record stage before the circuit court and in this was presided over by judge rosen and at that same time then the state after the hearing finally heard after about a five year delay in the state argued that there was no appearance by printer in fables is that if there had been that he had withdrawn before trial as indicated by the defendant's comments that there was no showing that they met that there was no showing that you payments were made and that regarding the witnesses that that was a matter of strategy or he said must have been by mr brown or new circuit court denied the post conviction petition and regarding strategy commented that sorry the fact that brenner had not entered an appearance in fables case did not mean that there was not and when the court indicated that the fact that he may have withdrawn immediately before the defendant's trial does not matter and does not mean that there isn't a conflict because it is a question of whether there was a contemporaneous representation at the time of the defendant's trial or in matters related to this trial and this was  in terms of whether or not he meant it had been made again there's no factual dispute that that hasn't been shown but payment doesn't matter and there has never been a requirement that there be a demonstration of a written agreement between the regarding this second question and again at trial counsel indicated that you wanted to to cross examine the complainant regarding her relationship with the chicago police officer he indicated that he didn't have the performance and regarding the court's suggestion that it was the had to news of mr rayney that prevented trial counsel from calling him as a witness i would note that constitutional violation that has gone completely on rebuttal by the state the defendant has been prejudiced by the trial course finding by the ineffective assistance of counsel and by the fact that he was not represented by conflict free counsel this is the third time that this petition has come before this court in a twenty year period it should now be remanded for a new trial because the defendant demonstrated a substantial violation of his constitutional rights if there that standing long winded fact that there is no appearance by mr berner might not be sufficient there were no phone records that alone might not be sufficient and there was no evidence whatsoever as the allegations of ineffective assistance of counsel he points to the physical evidence at the trial for example i just said the d n a blood evidence points testimony is  what the defendant now says his witnesses would testify to well even if we get over the hurdle that calling witnesses is a matter for our strategy to believe that his judgment call and strategy was incorrect based upon the evidence introduced at trial that was really listed in this court's order on notice of matters of record in its own proceeding and that court records are public you say night and white so do you think the trial court properly looked at what was said in the other much may please the court counsel counsel's introductory comment regarded the strength of the evidence in that case both when we're dealing with the per se conflict of interest here between counsel and the state's she evidence in its view was incredibly strong but i would note that the the state quickly jumped on the availability of mr fay hill demonstrating its concerns about the strength of the case based that the testimony of the complainant alone and the other evidence that had failed mr baseball was offered a deal in which he served only probation even though he had been on bond when he committed the demonstrating the extreme prejudice that occurred to mr small know when mr brymer in fact represented both of them at the same time  the state has also again reiterated his argument that this is a question of whether or not it was a manifest error by the trial court but the cases that have been submitted to the court including cases admitted by the state demonstrate that where is here there is not a question of fact that this is a matter no review and this court has already stated as a matter of law that the defendant has made a substantial demonstration constitutional violation both in terms of the conflict of interest and given that it's per se at that point and that's what this or finds in all of the stops doesn't matter with the strength of the cases but going on to the witnesses that were not all again this is a clear issue of defense counsel's ineffectiveness in failing to call witnesses that he submitted through co counsel was the primary theory on which the defendant was operating and indicated that he didn't have that evidence on the day of trial when in fact that evidence had been made available to mr brother according to the affidavits of at least two of the  witnesses given that this court stated that the presumption the strategy had been overcome by the defendant at the second stage and given the defense counsel indicated that he intended to call those witnesses but then fail to clearly his ineffectiveness was demonstrated and the prejudice to the defendant was clear because in the absence of that evidence there was really nothing to indicate that it was the defendant because the terms of the complaint given that the defendant has made a substantial showing a constitutional violation that has gone on rebutted in any fashion by the state the defendant has met this burden and this matter should be remanded for a new trial