trial or initial state court appeals that he would have had the thing that really strikes me as an attorney that does about fifty percent of my caseload is criminal defense is the number of conflicts in this particular case it's just staggering to me to look at it and i recognize that a lot of these conflicts are what would be probably construed as less serious potential conflicts but just the sheer number of them is just mind boggling to me or counsel how many of them did your client consent to in writing or verbal e or both well the only and that's essentially he's presented with a week before trial a consent to the waiver of the conflict of his attorney and we've got at the time he had leslie hall who was engaged to carlisle dalan who was a county attorney that was not prosecuting the case and he also had an attorney susan philander she was a public defender that was assigned to his case there was a public defender not assigned to the case katherine evans that was married to greg rosenblatt a county attorney that was actually working on have it's very limited another way of asking just a question i think is are there any of the conflicts you hear today that are not consented to and what are those yes i really think that the witness conflicts were the ones that were not consented to most of these witness conflicts were conflicts that the petitioner could not have been aware of and wasn't aware of until after the record was developed and post conviction relief proceedings  on july twenty seventh one thousand nine hundred eighty eight and the police initially respond to a nine one one phone call that was made at one forty two am from the son of the victim so we know that the murder must have occurred shortly before that one forty two am now d ackerman had actually according to her national statements to police said that she had called mr williams the petitioner at his home tween one in one thirty am to ask him about procuring some marijuana then although she doesn't go over to his house to actually see him or to get the marijuana she claimed at the time when she spoke to the police that she had spoken to him at his home then at three thirty am on that same early morning of july twenty seventh one thousand nine hundred eight d n ackerman actually presents herself to the police station and complains that there's two males in her apartment that would leave the police actually go to her apartment and remove the greenham brothers we've got michael in franklin graham and of course another conflict situation michael graham was actually represented by the public defender's office as well these two graham brothers were initially suspects in the murder now they were ruled out later and so i don't know that the conflict with the graham brothers is necessarily rises to the level where it's going to be able to establish in actual conflict well as to ackermann's testimony the district court said it's contradicted by her other statements that you're well aware of that you the district court kind of tries to nuke you on that one what do you say well essentially what the with the just court saying is if if they called in ackerman the she would have undercut this the earlier story given to the police by the by the defendant and the defendant's are what is the story of the defendant from his wife their story is is that he was at a bar i think it's rick's pub at eleven thirty that is wife testified that she saw him at eleven thirty and then he's at the bar until he calls home and his wife testified she saw him approximately two and a half hours later around two am now if in fact they are lying because they've got a reason to do so if he is initially when talking to the police trying to cover up his marijuana activities he very well may have that may have been the rationale for him to give them false or misleading information by the time he gets to trial it's obvious that there's a problem with that story anyway we've got numerous witnesses that don't don't really corroborate that version of events that he's at this rick's pub and so going with that rick's pub theory really wasn't a particularly effective defense and wouldn't have been more effective to present the testimony of d n a ackerman who would have less of an axe to grind no position that she would have benefited from by her viewing that she had actually called him at home during that relevant time frame so yes i mean i agree that jayne ackerman calling her potential as a witness is a judgment call but given the choices here for this defense attorney these aren't great choices you can use the earlier version of events given by the defendant that's obviously bogus the defend his wife's version which unfortunately doesn't actually place him in any particular point in time when the murder occurs org you can go it's an ac these places him very close to the time of the murder at his home the d n a ackerman story would have been a more productive more compelling version to present the jury of flanders knew about ackerman statement right at the time of trial clearly correct i think that's it and the you know i thing is when you're looking at this particular case it's obviously in hindsight you try to look at it and say well why did they do this why didn't they call some of these different people i can't figure this particular one out other than there must have been they must have chosen not to follow up with some of these potential witnesses due to the conflicts where the really wouldn't have been a whole lot of downside if they had been independent had paged mr williams at approximately two in the morning one of the things i guess i want to know in this particular case the there's obviously a lot of discussion about legal standard in the and most of the time with the district courts at least where i am in the risk of violence they evaluate under both different types of standards and largely that's because the more recent cases that have come out of this particular circuit have declined to determine joint representation issue here do we do we do not have joint representation issue for wouldn't strickland be the more appropriate standard i actually well obviously i think the color standard is more appropriate in this case although the representation is i'm joined here what we're talking about is public defenders office represents d n a ackermann on a drug in effect case public defenders office represents mr williams on a murder case where his potential alibi defense is premised on his drug activity although the public defender's office is not jointly representing parties in the murder case their representation of potential witnesses that relate and their representation relates to their role and as potential witnesses it seems to comport more with a kyler type of situation where you you can't make an adequate decision because if you make one decision you're going to harm the other party this isn't just a conflict testimony is going to relate to on this type of a case because the relating there representing on the drug case however that's the type of information that's directly covered by attorney client privilege they can't relate what she tells them about that to mr williams there then making decisions or not making decisions based upon conflict and i think that's exactly the type of prohibition that we're we're trying to avoid color in any of the development of the record was there shown that there were decisions not made that could have been made because of the existence of the potential conflicts here not really at the post convict ackerman they rule out using the an acronym because her story would not have matched up with the story of williams or william's wife so it's not directly mr williams offer anything to show how he's been harmed by testimony that either came in or could have come in had any of these relationships not existed not really at the post conviction relief hearing he did testify he gave some generalized statements about how he believed that these witnesses would have helped his case but he never goes on the record to state that no d n a ackerman would have placed him you know at a particular point in time here's what the time is where he would have been he's just mostly repeating what's already in the record for purposes of development of these witness statements i'm going to reserve a little bit of time here so i'm actually to try to exercise it you know we just go ahead you know what's the county seat i've never been there i don't know yet i know i am from sioux city iowa and although i practiced in is somewhat rural areas around the city i actually i'm not familiar with the county i don't know if it's around i'd like to begin with the arc of court of appeals decisions in this case to illustrate how reasonably they applied what ultimately became the law and mickens even though they decided this case two years before even four years before originally but the i have a court of appeals said in the original instance was we don't have a record to determine here whether a conflict of interest exists we need to remand this case and we specifically remand it for the district court to consider the following issues was there a breach of the relation a breach of duty did the defense counsel do something that was contrary to the interest of his client was that breach related to the relationship that created the conflict and finally did it adversely affect the representation did it change something that counsel would have done and so the case was remanded for that purpose and that's what the district court evaluated the i would have to court said it didn't change anything that defense counsel would have done it didn't prevent her from presenting some other viable defense and i say her i mean both of those hers case comes back up on appeal in the interim the iowa supreme court had decided the state versus watson case which i would submit to this court incorrectly anticipated what united supreme court would say in mickens what they said in watson was we do have an automatic reversal rule under the constitution and that is based upon whether the court had a duty to know or in fact a new of the potential conflict and did not inquire into the relationship then if an actual conflict existed it required automatic reversal but what the you know what the i was supreme court said an actual conflict was was not an adverse effect upon representation it was the nature of the relationship was it dual representation so when this case comes back to the i will court of appeals they've got to reconcile what their original  pinion remanded for and what the iowa supreme court had said and they do both they say on the one hand this isn't the type of relationship that creates the automatic conflict this is more like the kyler case and we're going to apply the kyler rationale to say what we did in the original instance was correct and by the way we didn't violate watson either so again i think what the court of appeals very deftly did was to the facts of this particular case and correctly so so then when the case finally comes back the third time they're asked to they're confronted with the idea that wasn't this an automatic reversal case under both holloway and under under watson and that the court of appeal said no it's not an automatic reversal case because it's not dual representation to which an objection was lodged so i don't think there's any way that this court can say that the i a court of appeals didn't reasonably apply the president from the united states supreme court in fact they very definitely stuck to that particular rationale now if there is a difference between holloway cases and mickens cases i would  court it's in the nature of structural there i mean what what strickland and chronic talk about and what holloway talks about is really the functional equivalent of not having counsel at all and those cases require automatic reversal the cases like this case and meccans are cases where you're not denying counsel to this particular defendant the counsel is operating as counsel but there might be something that affects counsel's choices in a particular case and we're going to look to those particular facts to decide whether reversal is more to it so what this court what the iowa court did here was exactly right because when you look at the facts of this case and how to apply the facts there isn't any credible evidence that defense counsel would have approached the case differently had there not been these other types of entanglements you have this discussion about deanna ackerman the interesting thing that takes place here is post conviction counsel wants to prove that a conflict exists and an actual conflict exist by only calling the defense attorney to exert the privilege so defense counsel doesn't actually ask answer any questions about what that relationship entailed what she learned from that relationship and whether change anything in the way that she would represent and factor blanket assertion as it didn't change what i would do but i'm not going to tell you about the nature of the relationship between that witness and myself is it very clear and undisputed that at the time of the actual case the very first case that that counsel knew of ackerman and knew of ackermann's first statement to the police it's certainly undisputed that early in her representation of williams she knew of ackerman and had discussed things with ackerman what she discussed we don't know and she well how do we know that she knew about the first statement to the police well everyone's assuming here all the courts are assuming that everybody knew that at all relevant times what's the basis for that well i think i think my recollection of the record is that her representation of ackerman began about the same time the river the representation of williams began and the discovery had begun on the case but i guess that leads to the conclusion we don't absolutely know i think that probably does i don't remember her testimony being specific enough to say what the timing was when that particular information came forward but in any event i would suggest that what needed to be done here to prove the actual conflict and that is a conflict that the effect of the representation was to call investigate claim that's being made the assumption is all she had to offer under this particular record is this kind of equivocal statement about when she talked to williams on the phone so to to prove actual conflict in this particular case it was absolutely necessary to call argument find out what it was she knew how it related to the defense and whether we could then presume or let's say make a credibility determination as to whether we believed counsel's testimony as it is there's only one credible witness to evaluate and i would say implicitly the district court accepted and i would court of appeals accepted the testimony of the attorney who said i would not have changed the approach i took to this particular case and beyond the the discrepancy between ackerman statement and the defendant's own statements and his wife statements is the fact that it's not really a defense that i called him at one o'clock is not a defense to a murderer kurta one forty two but i call him a tool five is not a defense to a murder the current one forty two so really deanna ackerman doesn't offer anything but the most of vegas of defenses and alibis for this particular defendant and what counsel said was weighed against what my client had said and what his wife was going to testify to it just wasn't worth calling this particular witness the other witnesses of course she rejected because of the hearsay nature of their testimony and the fact that they wouldn't be able to offer anything because their statements were about somebody else making statements and as to that fact again we don't have a lack of investigation argument being made here we don't know that we could have uncovered the witness that was in  was in jail talking about the events that was overheard i mean maybe if we had a lack of investigation claim made and this witness had been called off or what had actually been said again we'd have something to weigh the credibility of that witness against counsel's assertion that it did not make a difference to what she chose to do so i would submit to this court that there is neither an unreasonable application of the law to this case especially what the iowa court of appeals did was appl in the way the united states supreme court said and there's no unreasonable application of the facts to this particular instance because again we're talking about judgment calls here it's an it's not enough to say that some attorney would have made a different judgment or there maybe was a better defense that could have been offered the question here is was it done reasonable for counsel to choose this route and was the route chosen because of her relationship with another client and i think that's what's severely lacking in this particular record there is nothing to show that another route would have been chosen had this relationship or these other relationships not existed i guess i would conclude in saying that i think what does is make the system work in small town rural iowa counties we have a small population of attorneys and we have an even smaller population of criminals and they all come from the same kind of pools you know they they're the usual suspects these public defenders know who all these witnesses are going to be they've represented all these witnesses so there's going to be these inherent conflicts that exist these potential conflicts but what meccans does is allow us to evaluate those cases on a case by case basis and say it's not a just because they are previously represented a particular individual is going to be a witness it's not because they previously had a prior representation of a particular witness or even a concurrent representation it's how do these representations and these relationships affect what was done and that you determine on the facts and in this case you cannot determine that a different choice was made so there's no actual thank you i don't have much to add to my earlier arguments i mean it you know council is correct mickens is requires it to be a determination some type of adverse impact upon the representation and all i can say about that here is when you've got a decision is is being need whether or not going to call tickler alibi witness or not at least partially based upon yes not really do representation but simultaneous representation of that alibi witness in a related matter to what their testimony would be as the alibi witness that is the adverse effect they can't fairly evaluate whether or not they a venue an appropriate avenue for them to explore they basically have reached that result that nikken says this is unreasonable which is there's an adverse impact upon the representation but in order for the first to get that trial you've got then somebody the place is the defendant at home between one and one thirty when the nine one come call comes in at one forty two in the morning it's right around that crucial time frame it's certainly possible that the defendant was at home at one am when i committed the murder in the nine one one call comes in at one forty two am but it's not very likely and she's going to be a far more effective alibi witness than any type of alibi story that the defendant comes up with about sitting in a bar without giving any names or other people that can identify where he's at from eleven thirty all the way until two o'clock and so that type of i guess decision making where a decision can be it's being impacted by the simultaneous representation that's exactly the type of thing we're trying to avoid and that's what mickens essentially bars us from allowing that type of representation where tabbing adverse impact the public defender's office should have withdrawn when they saw that there was ackerman statements to the police that obviously labeled her as probably the most useful alibi witnesses that they had the only other way to go was what they did calling william's wife to say that she saw him at eleven thirty at a bar and then he was at home around two o'clock i want to thank you very much for listening to the arguments and i appreciate time thank you thank you counsel