prosecutor of mr chester street more or are you are you asserting that there's a purse a ruler should be for sale rule in the circuit that if any person in the government commonwealth government knows of even a potential conflict that that means there's got to be some automatic inquiry into the commonwealth has a responsibility at that point we are not of following looking backwards that we all impossible to relief because no one said time out we will all of you judge jordan but that failure to speak both then and a decade later instances criminal record checks of suspended lawyers who drink heavily will not turn up anything unquote sure which seems to me like a remarkable search and devoid of any factual support at all given that in the record there is a set of board bills which is and i'm not a drinker so i have a good sense of this but people i know who him by tell me that this is rather staggering amount of alcohol that mr edwards mean it's a consumer at least a buy how can you say that  two reasons maybe two and a half if you'll forgive me reason number one is i'm going to check the data and between one hundred seventy five and two thousand and thirteen eight thousand six hundred sixty nine warriors were disciplined in at the peace show race hearing and we have to apologize for not highlighting this and i would prefer but it's found in the supplemental appendix at page eighteen it is found in the i believe thirty three and thirty four as you referencing mr orchard the warrior now for chester makes a motion saying i'd like an order to get the disciplinary board records disclosed right because he thinks that perhaps there's some evidence that he's been disciplined because of alcohol right so it's not a bridge too far to think that in addition to having been disciplined professionally he may have also gotten in trouble criminally and there are two parts of the answer judge hard and then as to why we respectfully disagree what happens at that hearing is alan rubenstein who prosecuted chester who supervised because he was the d a the prosecution of mr edwards and who's now handling the p c r a interposes him self as mr we're sure is asking for this discovery to be given and says actually questions counsel at the bar the court do you have any definitive information that that problem may have occurred at the time he was representing frank chest there in the entire exchanges in the appendix it's clear contextually it's the alcohol and our position because obviously this goes to whether we're talking about under twenty to forty four know case is it really enough to show that there's some possible alternative defense strategy or tactic that mr edwards righted used without also the need to show that the alternative tactic or strategy i refuse to consider at this still why did not occur in a vacuum and occurred in what we frankly describe as a perfect storm of a lawyer whose wife and absolute collapse number two we cite and answered that question and draw the link in the appendix at page one seventy six and that's that part of the appendix is where we have the entire transcript of the edwards's testimony he agreed that quote my wife's condition my pending criminal charges and other financial difficulties i was having right than all interfered with my abilities and th this was in his affidavit but she adopted it in the court and said under oath quote that was accurate so we're not going into the hearsay issue or anything he accepted those as his correct statement in court but what did he do during the trial i'm sorry kind of all have said what's the precise page that you've got that on according to my notes which i hope are accurate not up i'll check it and my colleague will it's a one seven six have this disclose was the cut was a conflict of interest or one that a conflict of interests is not the failure to disclose it's that you're worried doesn't have one hundred percent royalty to you he has some concern about himself because he's try curry favor so that he doesn't get punished in his criminal case those are curry favor or at a slightly lower level which is that that becomes a major distracter which inhibits or prevents his ability to give his or to this case right but the problem with that he would seem is that attorney richard didn't develop any kind of a record on p c or a in front of judge peace or on that issue and like this a layered ineffective claim was an orchard ineffective for not developing that on me fortunately we never applied it under martinets so i have to say we're stuck in the procedural posture that we are potential conflict of interest that you cited in spain would show us where there is an actual where the record shows an actual conflict of interest well well forgive me i think we're asking two different things and we're struggling with can see there's a potential conflict but you potential conflicts aren't necessarily conflicts tensional conflicts discovered after a trial is over have to be proved or shown that they were active or activated by showing and  judge based or yeah at some point at some point you have to show the shuttle conflict was an actual conflict you don't get to go straight to address the fact you've got to pass the test set out in gambino for demonstrating something is clearly mister chester would have the right to say i don't want to miss my way you know how to treat actual conflict so it's no different in terms of but because we only know about it afterwards w example no i said if you show it once you should we can see that there's a potential conflict but also we have to show that there's an actual conflict in the end that there's if there's effective assistance of counsel with regard to that you have to let me try because i see my time is a good good ok here's what i think the law is and what we are able to show that with the existence of the do you wally which anyone here is serious i agree there are many charges that are more serious but for any lawyer i suspect anyone in this room one of us once you get arrested for anything not a good thing for careers at a time when my wife is dying and being sued by every means against me from the i r s my life is falling apart i have p t s d and i'm self medicating i thought i thought you had a band and you're your chronic quite we're arguing a chronically will argue with it starts to sound to me like stressing like you're saying i just i couldn't function if you're saying he can't function sounds an awful lot like you're making the denial of counsel quite now we are saying is that all of those things god how does it amount to a conflict of interest how do you morph my life is a mess into a conflict of interest because he cannot meet the standard that this court simply articulated in the zech case of being able to give undivided loyalty to a conflict right and it's not a conflict of interest if if your assertion is my life is a mess therefore there's a conflict anytime somebody has got a problem in their life from multiplicity of problems in their life they're suddenly in  conversely there has to be a high end where things have spiraled so out of control particularly in a capital case where a warrior is have the responsibility or somebody whose life yeah and what we call bad level of problem is a chronic violation because you've got so many problems that you're of actively denying the person council for if you can't make that claim you don't have a cop with the bitterest claim that all your talk about effective assistance of counsel under strickland but you can't turn criminal case none there's none when we suggest to the contrary that once he gets the dui when he's already in this cauldron everything gets magnified and we come back to my life feeling the part if you will this is the proverbial straw on the camel's back and we have it missions in the record from mr edwards that i missed this that i missed that it was cited on our brief that i should have thought about using mr chester's screen and falsely i should have done this time it was up to his potential criminal jeopardy to to get anywhere on the conflict plea and that's what we do with that state sounds like there's two steps you said none other such two steps so are an interesting to know how you think this works so that i can ask the other side the same thing and we can make sure if there's confusion  try to straighten it out if there's not that we're saying in a way thing and i hope i'm saying this accurately because this is discovered afterwards and it's a retrospective analysis we have to say is there a condition which for some of the time whether it's multiple representation more unrest that has the potential to create a divided loyalty because it's a retrospective examination and i'm going to shift  second t v use the cases on multiple representation because i think that answers your step by step analysis judge during what the courts have said ok what of the representation might result in divided loyalties but since we're looking at it retrospectively in this case oh they had the same defense no harm no foul oh in this case they had antagonistic defenses harmon fou that's where the adverse impact goes to prove that it was an actual real conflict before you said i did actually one fact question to a there was a proport think if you read the hearing carefully and see judge johnson's questions to him you will see that judge jones on that one seemed a little are you sure you didn't sign yet i don't but we're stuck at the moment with his record  and i would just like to be able to note that for the record so that you're aware of it and in judge julie's is opinion and fuel for getting just s lapses in other words the errors of a lawyer to succeed in this crime must yes just be so agreed just as to violate on objective standards for attorney performance so this morning i in it's not in there it turns out when you do a rex's search on that wind waged it comes from a subsequent case in this court and i apologize for we haven't caught that today that case is called hats at one three five f third nine o five but judge jones left out the negatives in other words in his  a pretty good point to raise the question when they say this is a wave of good defense and thirteen years go by these guys never cite the stats or limitations maybe talking about if the definition of actual conflict is there was some alternative and that plausible alternative wasn't taken because of conflicting interests but by definition at that second that you second and i understand the sheer situ you want to get to those points and i'm happy to hear but i'm still trying to i'm still trying to get the entered my understanding from both of you as to your positions on the specific past we're supposed to apply and his his statement to us is it's not two steps it's it's a test that says if you feel if you've got plausible alternative and you don't take  because of your conflict that not taking as i understand it the failure to take him he's the adverse effect that he can speak for himself on the car but that's what i understand the army just made us  by definition if you didn't do something because of your conflict that those link it to the plausible alternative well yes ok so do you agree or disagree with his assertion that however we may it in the past the adverse effect is baked in for the definition of the conflict if you fail to do something because of the conflict that is the adverse effect or is something else going on here that we should be paying attention to and there really is quayle strategy and were failed to employ certain methods in his trial strategy petitioner has failed to do so and to some degree that comes from the hearing we had before judge jo gave mr chester and his attorneys every possible opportunity to demonstrate that there was some relationship between its theoretical conflict and mr edwards do my life experience dictates you only for those things that you know are possible i had no reason to believe that alan would treat me any differently i thought it was a sure thing i would get a rb is there a is there a fact finding in  truthful are you saying that in bat those words you just quoted implicitly is a statement by judge jones that as a matter of fact he found edwards trial testimony his hearing testimony credible taking everything together yes that's what i'm saying and i'm saying furthermore that because you both asked about this is saying i didn't do anything at trial because i was concerned about not being put on a d i was it was a sure thing and judge jones was saying look i took the whole thing  decision yes yeah my understanding would be that i think we had one hundred eighty days or something like that and that's that's what would happen ok they say you very much dui offense for which there was a diversionary program available a relatively minor offense and there were not like other cases were serious criminal issues and you're wrong as a matter of walk to understand that that was something he could take into account the character of the offense is a misdemeanor with a diversionary program as impact on the question of conflict and and true adverse effect it would be absurd for me to say otherwise of course the quickly about the whole issue of was there a credibility determination i answer is no certainly not the only result of this because of paragraphs that my colleague reggie show he said my source demeanor and i make this judge jones is questions he asked this man did you take a da life or did you throw the case or g g tank well that's not the legal test if the test is only there's a conflict if you're deliberately throwing the client under the bus we lose but the test isn't there the test is could you given them divided loyalty and quality representation he deserved what did edwards admitted he would have done differently but for  might have done some things differently everybody had a trial whether it be civil or criminal might have been something differently if they had a redo but not in from the say and frankly you know what i'm going through post traumatic stress earlier and realize that judge jones applied a completely erroneous standard that may have infected if you will this whole was there a credibility determination what was going on here so we had