highlights the two constitutional issues that i'm bringing before the court this morning the first one deals with the problem that mistrial bernie's defense counsel had with that witness mr flamm his problem was that he had represented mr flamm twice before and that mr flamm was on parole from from from one of those cases and had been convicted of a felony in the end in one of those cases same case this created a major problem for mr buchanan to his credit he stood up in court instead to the court straight out your honor i can't do cross of this matter it's not right i have loyalty to my client unfortunately the court instead of doing what we believe that was supposed to do and he was mini hearing at that point where not only mr flamm the witnesses rights would have been properly reviewed but also mr al bernie's rights would have been reviewed and a reasonable decision made as to where the midst of you can and could he could be wrong of course he's not infallible but he was no deference he did not get any deference from this trial judge zero with all due respect to the trial court what we believe was going on here is that the judge wanted to move this case on understandably we understand judicial economy and we understand time but in doing that he rode over roughshod mistral bernese rights in this matter and this right to a lawyer who was not pulling his punches mr buchanan was pulling his punches on cross he did a decent crossed on the one issue that was sort of involved with mr flamm but where he failed really dramatically he never brought out for the jury that plan was a convicted felon he had a right to do that under nevada law and that's very very important jurors know what felons are and they and they needed to know that this man was a convicted felon and never knew that they also had a right to know that this man was on parole that was an we call what are called general principles basically general due process principles admittedly there's no bright line rule from the u s supreme court as john just noted but what they're obviously are lots of cases dealing with with fair trials under due process and i believe what this court did particularly in mckinney for example is after estelle the one guard came down this court looked at the case and looked at the law and decided that the under the under due process principles interestingly gideon  dramatically overreaching and dramatically unfair that that can be a federal due process violation beyond state law and i think that i think that's what this court did in the canning it's also worked at this what does the district court opinion on our side and i think it in areas that were that had not had a different bright line rule and i would say that the supreme court even though at the further that footnote from reaching any conclusion it did not say that in any way that it would it would not find that that was a due process  if irrelevant evidence was was forever irrelevant propensity evidence was piled on and that is clearly what happened here the evidence here of course was totally irrelevant i'd like to make one point is that the defense never never as far as i can in this record never argued that mr alberni was unfamiliar with firearms never made that argument at all that arguments created by the state courts in order to justify their rule and it's created sort of adopted by the u s district court it's a it's  it's an easy flow from defending it that it's an accident but it's not it's not relevant evidence when used i think we all know and unfortunately some recent events highlight this that you can you can have an accident with a firearm but be very familiar with firearms it happens unfortunately quite often i think and then our client was entitle to defend this as an accident but you never argued unfamiliarity with firearms that's that's a created defense to then say you can put on evidence knowledge but he never said he didn't have knowledge and that really is the grounding for this whole state's case which i say is a house of cards eighty percent of it is irrelevant propensity evidence they piled on this man over and over again not surprisingly the jury went with them we say that's unconstitutional and this court should reverse on that basis but we also say it's certainly reversed on one conflict law basis this man was entitled to have a proper evaluation he never even record page eighty and the court at that time provided a curious instruction that the statement could not be used to show guilt but once again to show knowledge of the firearms the nevada supreme court ruled that was you review the transcript you'll see that mr i'll be back mr alberni made statements saying that he was going to put a bullet in the head of the victim dentist mcelroy and that's what he did so it's not this now and regards to the second issue the second issue that was certified for appeal the nevada supreme court's conclusion that the defendant sixth amendment rights were not violated is not  when during the trial mr buchanan raised the issue the court excused the jury they were god they held a hearing and the court inquired as to what was going on as to the representation the court found w gain by asking about flams conviction now you've got a situation where all bernie's prior testimony i think is testimony to bush during the same day laid out lays out what had gone on during that day that led flamm to be arrested and eventually represented by buchanan that that information was all provided to the jury the jury was well aware of what these people were up to using was perfectly acceptable and adequate because what he went to go after was the reason the prosecution called him mr flamm was called to rebut the pistol whipping testimony that mr  adequate in that respect to limit that to more of the pistol whipping than to go into and rehashing in front of the jury the whole sordid detail of the histories and lifestyles of this cast of characters isn't  ability always an issue that you know that one needs to confront in a situation like this and if this witness were shown to be incredible wouldn't that but the radisson court felt that words the defense would not have been able to do much in addition to damage to credibility than it already been done and this court any further questions supposing that i disagree with you that there was no duty to protect the interest of the defendant the conflict free interest of the defendant was the defendant in this case prejudiced by assuming that i'm correct that there was air in not of the overall picture of this case this is just one witness to call the rebuttal is mr flams entire testimony amounts to just a few pages of a trial transcript that goes on for hundreds of pages so when you look at all the other e e you've got you know that the driver of the car who is sitting next to the victim when he shot and you've got this you're all burning in the back seat who in this trial bernie story was it was an accident even though earlier he you know that one twenty two supreme court at twelve forty five budget justice scalia writing that opinion said since this was not a kid case in which parenthesis as in holloway counsel protested his inability simultaneously to represent multiple defend and then goes on to say it was at least necessary for petitioner establish that the conflict adversely affected his counsel's performance i think where you've got a complete breakdown in the process where you don't have the proper review of the issue like like hollow i don't think you have to prove any adverse effect we believe that was adverse effect obviously and because of what we've talked about the no mention of the felony that there was some suggestion he was involved with drugs but it was never clear in the record whether he was involved in selling drugs mr flamm using drugs it was very ambiguous as to his involvement and this court recently in lewis v mail was very exacting in its review of cross examination in that case the attorney did a fabulous job of crossing as to events that occurred some time back but he totally dropped the ball on the recent event the dui here the recent events parole this man was on parole sitting in that witness chair and we believe he should have been crossed on that and obviously on the fel defendant only after doing that does it does it go and look at the perspective of the witness obviously you've got to look at both here only it was a partial and frankly i think it was a i don't use the word browbeating but it was pretty close to brow beating by the court to get even the even the witness to to to admit that he didn't have any rights nobody ever explained to the witness what his rights were just said you don't have a conflict of interest that if that's a waiver i don't i don't get that i don't see that as a waiver one thing i didn't limited instruction two days later it comes up again no limiting instruction this is a failure i think of the court again to properly protect the defendant's rights and if there aren't any other questions not sit down thank you very much