good morning and may please the court mr weaver was unconstitutionally denied his right to counsel of his choice there simply was no serious potential conflict that could justify a disqualification under we state still has and identified any conflict that was actually likely to occur at the trial and any conflict that did come up could have been easily avoided under identical facts and rodriguez this court found a constitutional violation to make matters worse weaver's replacement counsel was and constitutionally ineffective counsel failed to cross examine the state's only eye witness on a critical prior state that you are a man  disqualifications them from the prosecutor's assurance that the witness was vital to this state's case and then the state later failed to argue that the witness had any admissible evidence so why wouldn't that distinguish rodriguez i mean it seems that trade wickman did have vital information to the state look they had not only  both rodriguez and in this case the state after going to the court and securing a disqualification of the defendants chosen counsel then didn't call the that witness when it came to trial and the rodriguez court found that important for a couple of reasons one just because that's something that goes into the calculus as to whether or not a conflict is actually likely to occur nd and the rodriguez court was worried about prosecution possibly putting a witness on a witness list and securing the disqualification of chosen counsel and then just failing to call the witness but in both rodriguez and in this case the prosecution says this was a witness that might be call got the disqualification because of that and then failed to call that witness now the chandler is an important case because it shows how this court applies the rule that the supreme court court then reiterated how important this right is in the united states begins as lopez two decades later when it found that the right to counsel choice is so important that if you deny that right without finding a serious potential for subjective facts about whether or not a conflict is likely to occur and if after reviewing those that conflict it is unlikely to occur or if the conflict can be completely avoided and there simply cannot be a serious potential for conflict now there are several facts in rodriguez that were important for the determination that there wasn't a serious potential conflict one of them as we are discussed was that the witness wasn't called another one and whatever he was the most important fact the rodriquez court was that the conflict could have been completely avoided on page six hundred and seventy three of the rodriguez opinion the court says the following having co counsel cross examine the witness would have eliminated all risks and this easy solution which the state judiciary ignore makes it unreasonable for state to deny rodriguez the benefit of his counsel services counsel what was the relationship here between attorney charles murphy and the co coun they were working together so this is one of the things that concerns me about this issue more broadly and in with the rodriguez opinion as well i just i don't quite understand why having a different face in the same defen reasons for disqualification be imputed to her where are the similarly in rodriguez the two attorneys that teamed up together i represent i know that rodriguez said that but that seems to me to be in some tension with vast bodies of professional responsibility law at least as i'm familiar with well your honor again there's no indication that mr jancee had any form or relationship with mr weaver she wrecked she came and represented heard throughout this trial sometimes on her own and rodriguez court found it very important that if another attorney was i or no i'm asking you why you were disqualified we would be happy to see mr le grand again but i'm not sure that that would really solve the disqualification problem unless we're getting into you know the kind of internal walls that are built sometimes in law firms and so on but we don't have any indication oh there's there was no indication that mr jancee knew anything about trade like that from the from charles murphy's previous representation of trailing ok well this may not be productive to pursue further but let me  raise the issue but it seems to me pretty clearly your choice of counsel or human is your strongest one and the thing that concerns me the most about your argument on this score is the language we find we that warns against hindsight such as what happened to trial namely tray work is not called and that obviously gives an awful lot of discretion to trial courts in coping with the uncertainties posed by these potential conflicts yes your honor and no doubt that we says that trial courts do have some discretion but that discretion is not unfettered it's necessarily bound by the framework that we create said that he would limit his cross examination in a way that so that any potential conflict the fate the state thought might come up wouldn't come up as he wouldn't ask those particular but not what i'm a little mixed up because on the choice of counsel conduct any cross examination of trey wick yet now we've heard arguing that would have solved everything now how could it be error for the state court to disqualify markey when this possibility was never presented to the court how is that part of the claim not to faulted i'm a little mixed up here well your honor it's because when evaluating this claim the court should have looked into various possibilities for willing to limit his cross examination such that any potential conflict wouldn't actually come up during his cross examination of trailing additionally you can see in the in the record in the state's motion to disqualify charles murphy something particularly important as they don't move to disqualify that motion is only to disqualify charles murphy so it appears from that motion at least state wasn't thinking that just disqualifying charles murphy necessarily meant dunford chance he had to be removed from the trial there are several other factors in rodriguez that were also important to the court for finding that there wasn't a serious potential conflict one was that in both cases the witnesses were represented in representation was on a prior unrelated narcotics charge that had nothing to do with it with mr weaver's charge for st degree murder you had something to do weaver well yes your honor but the anchor here is not about the relationship between weaver trailered obviously weaver being the defendant is going to have a number of relationships to various witnesses that might be called the trial what matters is the relationship between the wick and charles murphy attorney and that relationship he had charles or if you represent him on an unrelated narcotics charge as a state admits in the response brief on page four it was an unrelated criminal matter so all of these various facts the fact of the conflict could have been avoided either by having dr jan ski do the cross examination or by limiting cross examination the fact that the witnesses were represented in an unrelated case the fact that they never called the witness at trial and the fact that the state here didn't even know what page forty four to forty five that they had done their own investigation they hadn't gone and talked to trade with you see what it was that he was likely to say so they hadn't done the due diligence to figure out if something if it potentially create a conflict was actually likely to occur and that's necessary to figure out if the conflict is going to be a serious potential conflict that justifies disqualifying if in its chosen counsel it justifies denying that if and even if they had interviewed him at that point though they still couldn't be sure what he would say no your honor but there's at least a requirement to do some diligence to present some evidence that that there is going to be a serious conflict so the state should have done some some form of that station some for did call him and put him on the stand right now your honor they did not call this house so when i thought all right i thought that's what you just told me no he didn't chose not to call him that was my point because he testified boyhood statement and t from responses so yes he did the state never chose to call this witness which is another reason why a conflict here was unlikely to actually occur so your honor it's with all those facts in mind this court found in rodriguez that there was and weaver were involved and of course the evidence showed three guns and at least two shooters so how could the failure to introduce new case confessions have harmed weaver your honor libby's confessions actually said that lupe a was involved in the murder with another individual named pierre and not window weaver so the yes the record does indicate that there were two shooters  interest whether or not the actual potential conflict burgeoned into an actual conflict a trial in fact it says the exact opposite that because because  because that the attorneys in the matter can't necessarily know what's going to happen as trial progresses at the at the trial court is it needs to be responsible for making a determination before trial begins whether or not there is a serious potential for conflict of interest so where do we see in the state court the application of wheat and the presumption to begin with in favor of the defendants choice counsel sure so in the in the illinois appellate court's opinion they specifically cite two week to begin the opinion and then they go on to consider a they go on to consider multiple illinois supreme court cases which in fact clarify how they only one supreme court determined that it that  wanted week to be applied in its state and in so no where do we see the presumption just for starters the presumption in favor of the defense choice so specifically where we see it is in patient to those cases and those cases in the portions of those cases which which directly address i'm assuming you know these cases in illinois better than i do yet so can you point  to what's the nd longest indication that the only appellate court took into consideration the presumption that has to be the starting point u these four criteria these four factors that it would like for trial courts to consider and i don't see that presumption the presumption anywhere in those four factors so if we look to those cases and that the illinois supreme court's rationale for establishing those four factors it specifically states that the reason that those four factors exist is in order to consider that is in order to consider the presumption in favor of choice of counsel and that only with where these factors are going to are going to come into play can that presumption be overcome so it given me an answer on that thank you and i'm troubled in the illinois appellate court's opinion or a talks about the record this is a page ten of its opinion the record shows an appearance of impropriety reverting charles murphy's possible concurrent representation of defendant entry rick what's the evidence yuri basis for that possible concurrent representation i thought it was just  murphy went to go talk to this guy who was on the state's witness list so and he denies entry worked and i was there was any representation trail it does not deny that there was any representation  in addition notes from from charles murphy's visit indicated that he also discussed with trey wick expanding charge which was a violation of probation and an underlying charge the violation of probation was the probation that he received  while being represented by charles murphy and trey would also additionally discussed with him his his likely plea deal in that case and so what the court was saying what the trial court determines was that  it didn't make an actual determination about whether the representations were contemporaneous but what it says what it says what it said was there is a serious risk here that this could be construed as a contemporaneous representation if and at the very least it was improper it was there's an appearance of impropriety of going to visit a former client in jail without you mean by an approved for that he wasn't approved or no your honor up a space prove or which is to say an individual who could have who could have testified as a witness to the conversation what kind of person would it and for this type of for this type of a situation where oh where an attorney is going to jail to a jail in order to discuss talk with a potential witness at trial in order to discuss their in origin scott's what they might be testifying to and in order to potentially get a statement on the record about which would either be consistent with what he says a trial or inconsistent and could be used for impeachment purposes a trial generally speaking an attorney would go with an investigator who does a nice if he's got enough staff  murphy had represented this unrelated this unrelated witness and was now representing who is now representing petitioner what we had here is is a lower level drug dealer randall trail which who is now a state witness we have charles murphy who has represented that state witness previously and is now going to the jail to talk with him about this his potential statement against his  with nobody else present and said and says i would like to talk to you about your statement against my client your boss petitioner and suddenly he comes out of that meeting with a statement that is it wouldn't it's not appropriate at all for him to be going in for him to be going in without anybody else present to talk to you in a state witness and if your truth isn't represented where does that come from right mor walked out and witnessed by himself one of his former clients the lawyer is going to talk to one of his former clients about one of his current clients the lawyer the lawyers relationship with that former client the entire basis for it was because the current would have to talk to trey wick peered right that's that's correct ok and so what makes this suspicious in your mind or raises a potential for conflict is the fact that he didn't take anybody else with him and that he the counsel did not and that coun l had formerly represented tree work in this in mid lee unrelated matter had formerly represented him and was now discussing with him current legal d issues that we had and he has to do that right now excuse me that lawyer the lawyer has to talk with you about those issues right now i mean any any any examination of trey which is going to have to deal with his current legal troubles right not necessarily he had been there's no there was no reason for charles murphy to be talking to trade week about whether or not he was going to be accepting a plea deal and his case went to guys where you don't think a defense counsel should be talking to a potential state witness about his potential entire the point of this entire problem predicament is that when if a jury were to learn that petition if a jury is words learned at trial that petitioners coun went in to went into the jail where his petitioners were counsel's former client was sitting and suddenly secures an advantage a statement to petitioner there is a clear appearance of because we don't know what's going on in this in this conversation we don't have any witness who can testify who can testify about about what was said during this during this meeting between between charles murphy and ron tracon so what is what so what we had is charles murphy's word that he didn't say didn't say anything improper didn't just a didn't necessarily say look i'm representing your boss we're going to as murphy that would be ok if an investigator went in then there would be as substantially lower appearance of impropriety for the jury because an investigator would get to be and i would there be any obviously would depend would depend on what the investigator and succeeding testifies but but he could but at the very least there would be someone available who could testify as a witness and alleviate that appearance of impropriety even if used just a full time employee of murphy's right yes because what works better yes because what murphy was doing was essentially inserting himself into into the case making himself a potential witness in this case and this court has found in fact that that that interviewing a witness without approver could have constituted ineffective assistance of counsel so so when all of the evidence pointed to the shooters being in a car goes right to the heart of this guy jennifer gratian of weaver how could that unique evidence be called cumulative and why t there was petitioner overstates the piss his position when he says that all of the evidence pointed to drive by shooting and not a shooter on foot that was  was petitioner's theory of the case but there was absolutely no there was absolutely no expert testimony to that effect or admission by the state that this was exclusively a drive by and so petitioners claim that that asking this question and getting calico on record as saying that petitioner was on foot would have blown this case wide open presupposes that the jury believed his overall theory of the case which was that this was a drive by and not a combination of a drive by and a shooter on foot and so there was there were two possible scenarios it could have been that this was a drive by or it could have been this was a drive by with the shooter on foot and so there is no reasonable probability of a different outcome in a case where we don't even know whether the jury believed his overall theory of the case that this was exclusively a drive by but additionally as to the point about deficient performance we're talking about here is a counsel who ma made a mistake in not being clear enough when he thought that he was listening to the router and placed that clear impeaching testimony regarding the on foot statement but the th amendment does not entitle error free representation entitles him to constitutionally adequate representation and that's what i am going to what possible strategic reason is there for not impeaching calico with his statement to get laney on the day of the shooting that he didn't see the shooter your honor with regard to delay any it's important to be clear that the the argument is not necessarily is not that the laney there was a strategic reason for not calling to lanie but rather at that counsel made efforts to find delaney and when he couldn't find and when he couldn't find a laney he applied an alternative strategy which was the best that he could do at that point when he couldn't find the witness and that was to spindling his absence as a flaw in the state's case and he did that at several points in a closing argument and he did that and he did that when he attempted to get a jury instruction presuming that the laney would have provided testimony that was hurtful to the state's case and while that particular effort that counsel made was unsuccessful it was based off of the civil some civil cases that he had found and he was trying he was trying very hard to have the court extended to the criminal context what this shows was that counsel here wasn't sure completely shirking his responsibilities to investigate alania and try to deal with the delaney issue but rather that he did the best that he could when he couldn't find laney ringback and the record indicates that everyone was having difficulty in fact finding the lady the state also is having difficulty finding him and it was because delaney had left town and was somewhere else and so that overall looking at council's overall conduct here it didn't fall fall below an objective standard of reasonable ness he did he he did what the council would do the best that he could given certain the cards that he was deal castle i'll give you some additional time give me five minutes thank you your honor let me st address the point that the state made about there would be no appearance of impropriety if someone else was with charles murphy during the interview i'm works for charles murphy was at the interview that's what it's what do you what page twenty one dollars people's motion to disqualify attorney based upon conflict of interest you need a hearing on our position would be that there's no requirement for an additional hearing on that because the appearance of impropriety is one of a number of factors that ultimately led to the trial cour regarding some of the other claims during the state's presentation st that there could have been two or possibly three shooters the prosecutor said on the record just prior to closing arguments that their theory before us is judge wrong are you still with this we can blame on the weather because just rotors snowed in and outside of chicago on the east coast argument yes another point the state made was that it wasn't clear from the record whether the shooter was on foot or in a car said the jury could have believed either way but the prosecution just prior to closing argument said on the record that their theory was that the shooter was in a car so that's another issue of the state's presentation additionally the state said that potentially rodriguez isn't something this court should look to it should just look to two week rodriquez showed how this court applied wheat to specific facts and in fact this court has applied rodriguez in other cases for example current carlson v h s a two thousand and eight case this court called rodriguez the governing law of the representation happening at this point but ultimately that doesn't matter because under the rodriguez case there was concurrent representation happening there and then finally your honor on the the point about  ineffective assistance for failing to cross examine calico that piece of cross examination evidence was different in both kind and different in importance to all the other cross examination evidence that came out at the trial just a cursory review of the record shows just health vitally important that cross examination evidence was in opening argument supplemental appendix page one thousand and eleven of two counsel says that it's a very important fact that no one was standing on the street and that people were in a car additionally in the affirmative case brought by defendant although you saw from a briefing the state were counsel should have called up to seven different witnesses counsel ultimately only called one person that one person the whole reason they were called was to say that no one was standing on the street the shooters were in a car and then that's what it's a right before the closing argument it's clear and supplemental and expect one hundred and ninety seven dollars that counsel is intending to argue that calicos prior statement about the shooter being on foot undermines his entire account of what he saw that day and addition to it just being different in importance it's also different in kind this unlike all the other cross examination evidence about whether calico had been smoking dope the day of trial whether he was in a gang whether he had a good vantage point this piece of evidence went to whether or not calico was telling the truth on the stand if what he was saying he saw  could have possibly had it's a difference of saying something is so much on credible versus saying that some i said i saw a blue car but it was really a red truck so this was just different and kind and import to the other lines  cross examination so like this court found in talvi mccarthy when it when the state court doesn't appreciate the type of evidence is being brought in doesn't put it in the context of the overall defense that is being brought