morning judge would judge hamilton judge perry me please support my name is sam park i'm an attorney it was so strong and i am the court appointed attorney for the petitioner mr cornell reynolds mr reynolds could not be here today he's at the wisconsin correctional facility your honour's this case at its core is about mr reynolds sixth amendment right to counsel nearly fifty five years ago a judge black justice black in get him versus wainwright held it more years in criminal courts are yuri's and since then the right to counsel for the trial and during appeals as established by douglas versus california has been celebrated as one of the most fundamental rights in the u s criminal justice system the promise of gideon however means more than just the existence of counsel it means that the accused defendant is entitled to independent advocates who will work on behalf of the defendant without state interference and free from conflict of interest so mr parker i would like you to unravel this case a little bit for me in the following way mr reynolds gets convicted he files some trial counsel lies i gather files of post conviction motions and under these somewhat unusual wisconsin procedures then there's a remained for the mocking or hearing then finally after denial of post conviction relief we get the state public defender saying to williams that it's withdrawing funding and all the things sort of interfering if you will relationship that's one of the arguments that your opponent braces is wait a minute that's pretty late in the day we have already been through in a sense our round of appeals when we had  you know the denial of the mocker hearing and then you go to the wisconsin court of appeals in two thousand and five and the reversal and remain and so have has mr williams waived the right to complain about the effectiveness of a his trial counsel or be his appellate counsel your honor i think there is no dispute here that the the first round of appeals the first his direct appeal appellate rights are what's  issue here when he was appointed mr williams for his appeal during the so called second round that was considered under wisconsin law to be his subset of appeal so that was when he was if be afforded his right to counsel and i don't think there's any may twenty third two thousand and seven when the wisconsin trial court denies the trial attorney ineffectiveness of counsel argument at that point going on up to appeal to the is also his merits appeal is that is that right i believe that's correct your honor so and that's with william and that's after williams has been compromised so he's he shuts off his investigat rights let me ask you a question and i put aside for a second whether that the denial claim was waived or procedurally to fall short but on the merits of it williams continued to file briefs on his behalf so it seems to me that your claim about the denial isn't that he suffered an outright lack of counsel but just that counsel didn't raise this one argument they wanted to raise which seems to have been forfeited anyway they're well putting aside the forfeit mr reynolds here asked mr williams to investigate certain issues the records not clear what those issues are one one avenue of relief that that we do know about is that the equal protection issue but there were others that the record simply does not show about and i think that's part of the problem here is that he because he continued to pursue even though he wasn't getting paid the arguments that were r t and clay so is it your contention let's let's even assume that there was something besides the equal protection claim that he didn't investigate what your position be then that a defend there's the absolute denial of counsel which so i think this judge bears suggesting is that at best an awkward fit for this case because he continues to do things there's the conflict of interest you can have a lawyer but if you or has a conflict of interest with you that lawyer is not going to be performing as the lawyer you're entitled to under kyler against sullivan and then you just have a regular role stric and sixth amendment ineffectiveness of appellate counsel argument so you have all three of those arguments there certainly is a line of cases in the supreme court and what comes to my mind is wigan's against smith that says part of your right to effective assistance of counsel is for counsel to conduct a reasonable investigation so this guy because of a conflict of interest shuts down his investigation and carries forward only the things he'd had constructive the nihil of counsel but we believe this is a denial of counsel issue on their penson and also under the circuit's case wall warburg walbert case in that case this circuit this court held that that case even though the trial counsel remained on the case under some judicial interference that the that there is the record in that case show that the trial counsel remained on the case for the entirety of case entirety of the case there is no evidence that he cortical pulled any punches during trial but this court still found that there was a good quote denial of counsel case in that case because of the in permissible interference by the state and we believe that this case is actually even worse because during the the appeal the state of wisconsin came to mr williams and said i'm not going to pay you for any of the work that you've done for mr reynolds past or future you're not going to get paid for any of the other cases you're working on for us and you're never you're never going to get another case from us williams was trying to do the right thing by trying to under professional obligation to file something on behalf of mr reynolds but i believe in in the end it all said he stopped all further investigation absolutely right and his subsequent as i'd like to say actual conflict part by and i think part of the reason is that that it's pretty clear that there was this conflict he could not serve his interest of getting paid and making his livelihood and also advocating vigorously on behalf of mr reynolds in this case because he couldn't do both of those and that's a that's a sort of a textbook example of what an actual conflict that is the adverse effect this is a problem that's different than actual prejudice the adverse of fact wrong under kyler only look the attorney have done something differently an example of this is for example would be attorney have filed a motion for example if he did not have a conflict ok but in this case what's that is it is the adverse effect that he did not pursue the protection that well that and other issues that we have to be able to identify and after so much so how about the jury instruction are you that's another example you never do train threaten actual seems to be a difference absolutely right clear conflict and there was an identifiable effect because he even tells mr reynolds i would do these things but i'm not going to get paid for it so i can't do that for you what if what if the public defender it on a flat fee basis and he had worked way more than he anticipated and so he didn't really have much incentive to work more but that be a conflict that is a great question and that's something that i've struggled with  think what should have happened here is the as state public defenders office should have met with mr williams the beginning of the case here's here's the complexity of the the appeal here is your budget but we're at it represent your client honor and and you wouldn't find any conflict there i don't believe that there's a conflict issue if that's what happened under that scenario but this is a much stronger case for conflict than that in the hypothetical what if if you know what if the public defender just doesn't pay very well and so you know you just don't have a lot of incentive to work very hard to argue label his work too hard here and that's why that i don't believe that's a complex but that's a conscious choice those who choose to take on that type of work know exactly what they're getting into and work and decide to do work for that fee what happened here is completely different in the middle of the case he just said you're fired but we have to think about how a defining conflict right you know if you take a case for forty dollars an hour and then suddenly you have offers from higher paying clients you have every incentive to start filling your time spending time on the other cases it is that it conflict overcome my concern is that i really don't understand what difference i understand the theoretical difference but given the facts in this case i thought the issue at trial was identity of the shooter not the particular w found that there was no actual use of the of the weapon so that element could not have been proven by the by the jury and somebody did die that's correct right but not true at that but art but mr i know sometimes that it was not him right and that's my point that it was identity that was the issue not the particular way in which a weapon was used or was used to threaten  and i think i'm going to have to think about that issue a little bit but i do believe that that is an issue that needs to actually be fleshed out during the actual appeal it just it just never happened in this case thank you for thank you it's ross now bit unusual so the direct appeal process from a criminal conviction begins with generally began with post conviction motion to the trial court and that's a motion that was made motion now i'm just sad just sort of following along with your account so there was initially a motion shortly after trial i believe two thousand and two is when it was filed an attorney williams was on that motion and the trial court denied it without a hearing and are again and then went to the court of appeals a second time but in between that and the ruling of the court of appeals is when he's like banished from the wisconsin judicial system it's not just a you're spending too much money on this case that's why all these hypotheticals about case budgets don't seem to me to capture the fullness of what happens you're off this case because you're wasteful in spending too much money we're not paying you for any other case and by the way we're never appointing you again so go move to you know idaho or something like that right it was during the briefing when attorney williams was writing the briefs the first brief and the second appeal that's when they'll be going to the side of twenty three two third attempt to post conviction rudely but i would like to briefly said i don't agree that the public defender's office told the turning lines he was off the case had they just removed him from the case or had he just stopped working in the morgue withdrawn without getting new coun work for runaway then it would clearly be a denial of counsel on peel but that didn't happen what they told him though was we're not going to pay you as much as an extra nickel for this case and we're not go pay you for anything else and we're never going to appoint you again so he just draws a line in the sand throws into the hopper the brief on the things he's done so far  doesn't do any more work which again with the wigan's idea in mind bothers me very much because the supreme court of the united states has recognized the dimension of effective assistance of counsel is the quality of the investigation you undertake so i i i think it's it's an unusual scenario but saying the federal court under the criminal justice act there's a budget roughly ten thousand dollars it's got inched up a little bit from that people work for that ten thousand dollars if they expend more time then they can ask the just record for greater may say no and that's even not enough because i know personally it has to come to me and then i have to decide whether the person went over the ten thousand dollars budget maybe they spent fourteen thousand dollars they going to get that extra for so that system i don't see any reason to challenge that system but i don't see that is what happened here i don't think that there was a conflict of interest or a denial o the tourney part noted that in his oral argument today that conflict he didn't say is brees but he said today that the conflict also caused attorney williams to forego the jury instruction issue but the same problems the same problem with that issue to that issue was also forfeited just like the equal protection issue when it wasn't raised in the first appeal but we've never had any adversary testing of that i it's certainly an incense you're saying we just have to take the state's word for it that you would have maybe a maybe a lawyer would have a different thing to say about that is if we had the other half of the adversary system operating well it's not just taking my word for the court of appeals did address the jury instruction issue and it's not a jury instruction issue it's already written so basically all he had left to do is just file it is and the only evidence in the record is the affidavit by attorney williams which is a little over a full page and it's not quite one hundred percent clear but it goes maybe ninety percent of the w i believe my interpretation of the affidavit is after he has told me when i get paid and to clarify he has actually would says he wouldn't get paid for the final set of groups he never said he wouldn't get paid for the first three things he did in the first the first two motions in the first appeal here is the only issues that have been preserved in the first appeal is there anything in this record about the state public defenders offices handling in this kind of a situation i would i would think if you're delivering a message that was delivered to mr williams you've got to be saying well what what do we do about you cases that are in the pipeline is there anything that is going in the right here and unfortunately this issue was raised in what's called a night petition which is a hideous corpus petition to the court of appeals in wisconsin so it was never in the trial court the trial court never looked at this issue there's no fact finding no hearings or anything so the only evidence in the record is says you know i had in essence been fired by public defender deprived of payment for work already completed on his behalf and here's the thing and that i could not bear the expense of running down any new pads of inquiry  and then he says in paragraph eleven i completed the briefing and petition on his request for his file to him so the best interpretation i can give of that is that he shuts down any new pa inquiry you know maybe prints off the brief that he's that he's prepared so far and gets that into the hopper figures maybe that's better than nothing i don't know but that's that's what he has to say about it there's never any further exploration correct you that explore any new issues besides the one that had been raised in the first radio and why is that not and the reason he didn't is because of money the reason he didn't is because his financial interests were something that he put ahead of mr reynolds interests that's that's in essence the kyler problem that i see  he would have checked into mr reynolds other ideas had he had some prospect of compensation but he didn't because his money was more important than mr reynolds appeal i still have got a few things to say in response to that so the first would be there is no clearly established federal law and mickens versus taylor says kiley versus l of and did not clearly establish the lawyers financial interests could create one concession pamphlet event but that said hi to see you're committing the mistake that defendants often commit you're taking that it too high a level of generality here in the gran situation it's not just you know i don't get i only get paid forty dollars an hour or you gave me a litigation budget that turned out to be too low this is an extreme action by the state actually shocking action to me by the state public defender given the way it works on pending cases you know the state public defender doesn't want to be on the list anymore that's fine for the future but pending cases are now that matter with all due respect i think reynolds position is the one that's looking at this supreme for president a too high of a level generally he's saying all he needs is a president that says it's a conflict of interest it's unconstitutional and wrong but i don't read it that way don't he's saying this conflict of interest this you know you have to just drop my case like a hot potato conflict that's not mickens that's not you know it's on the facts is how we have to evaluate this and saying it's it's become too expensive and you know even a pro bono lawyer if that the person just said juan tired of giving you pro bono hours and walking out the door you know we would find out a very troublesome well the lawyer in this  case not just walked out the door he's still there when he was supposed to do you know he don't he didn't because one of the things he's supposed to do is perform a fair investigation if he had rejected the other arguments the equal protection argument the jury instruction argument on the merits because he thought it was forfeited because he thought it was not a sound argument we wouldn't be here i mean that's what lawyers are supposed to do but he doesn't he just says i don't want to waste my time point is he should have and runnels not get the benefit of the doubt simply because his lawyer failed to realize that this issue was forfeited i don't think that's how it works though then we would just dispense with lawyers all together and just say we'll figure out what your lawyer could or should a raise will decide whether it was and you good that's just not the law let me ask you about your position on adverse effects as adverse effect require an inquiry simply would a lawyer and his position have been affected by this conflict or is it more specific something more canned to stricklin prejudice even though you don't have to show the outcome would have been different but asking about a particular issue would he have case many times this court has said a couple different formulations for the test and it's not just whether there was any fact or reasonable likelihood of enough fact it's whether there was an adverse of fact and there was in this case but it wasn't adverse because that issue was forfeited could it be adverse as judge woods pointing out is it an adverse effect that he simply said i'm not going to do any more where is the at if that adverse effect you consider or the adverse effects a merit issue that park also said he omitted this jury instruction claim but that was also forfeited for the same reason and ultimately was also rejected on the merits and reynolds third  not to it is part of the record and this court should consider it number two is that adverse effect this court in story ever sue knighted states held that decisions sue for go investigation or additional research are enough to satisfy the adverse effect courts and that's what needs to happen thank you all right thank you very much and we appreciate very much your accepting this appointment from the court we appreciate your efforts and those of your firm and thanks as well of course to the state we will take this case