the desire to win over the duty just over or the over their responsibilities as attorneys they generally make a mess of things and that's what occurred in this case prior to trial in this case the prosecuting attorney had what was  best a potential conflict of interest he had represented the minor in a proceeding to your earlier in an unrelated matter that involves similar allegations but it's different to give it your all prior to trial that's counsel about this prior relationship or represented that he had no intention of introducing that evidence because it wasn't relevant to current prosecution if we had stopped at that point there would and in to the rules of professional responsibility absolutely prohibit a prosecutor from participating in the prosecution of an individual that he defended in the same manner in the same matter this case doesn't involve the same matter it also prohibits prosecutors from participating in a case if by virtue of their prior representation they have acquired knowledge of the facts upon which the prosecution is predicated or which are closely inter there with significantly gerald doesn't require that the information the knowledge that they bring from this prior representation involves confidential information gerald talks about knowledge that the attorney that the that information is not confidential if it's used to the client to the former clients documents mid trial everything changed to counsel surprise the prosecutor in this case started  elicit testimony about the subject matter of the prior representation of the state in its brief talks about the fact that perhaps the state's attorney was surprised by the risk by the by the complainants testimony that something like this had happened to before that argument is not well taken if that were indeed the case if the prosecutor consistent with his representations pretrial intended not to use this information his response at this point would have been i'm sorry your honor i didn't expect that in fact answer to come forward but instead took this prosecutor did thereafter is very purposefully elicited testimony about the subject of the prior representation defense counsel initially objected and then with your honor i don't have any idea where this is coming from rather than apologizing the prosecutor in this case was ready with a theory of admissibility when the trial court overruled defense counsel's objection the prosecutor continued why didn't she want to tell nathan in fact which were the two boys that she encountered immediately after the alleged incident why didn't she want to tell them what happened and then respond and stuff that happened before with matt and another girl she got bullied heavily now at this point we would expect that there would be some testimony that would follow about and label hoarding because that is the purported reason for allowing this information in that she had heard about this other interest that and that she was afraid  being bullied and the only legitimate reason for getting that information is to explain the fact that there was some issue with delayed reporting the problem in this case there wasn't a problem with delayed reporting she tells nathan and zach that matthew tried to do something to her and shortly thereafter makes a very explicit statement to an ex boyfriend of hers where she tells him matt has done stuff to me and i did not want to he had put his hand down my pants and i told him i wanted to go home so there is no issue with matthew has done this before by trying to elicit testimony that there was a recantation in the case he ultimately was accessible because it responded that she didn't know anything about the recantation at this point we would expect the matter to be dropped but is instead the prosecutor again revisit the issue during redirect asking her if she was aware of the if asking and if she was aware of the fallout that occurred with the other girl and again if we're talking about the issue of delayed reporting that's a legitimate in but then he goes further after he then says and what all i did you see i guess what was the rumor you heard the rumor of course is the only way to get the information in because then and wasn't privy to actually what happened between matthew and the other  this point to tempt defense counsel objects to track court again over the objection based on state of mind which in this case is shorthand for reasons for delayed reporting and the state's attorney continues what was the rumor that you heard happened i heard that she was raped by who matthew that's not enough the prosecutor then does something absolutely extraordinary he asks and a question that is completely unrelated to the quick to the question of why she might case they would have had to have done it with the special prosecutor because the facts that were at the core of this impeaching testimony were at the core of mr thompson's prior representation of math you know there would be if it were british if the prosecutor at the beginning of the representation had said we intend to introduce testimony about an incident and i represented matthew when it when it was regarding this initial at that point that's the place to do this in this case the prosecutor said i'm not bringing this information in has it's not relevant i certainly would agree that if it goes back on retrial that the state would have an us the confidential relationship between attorneys and clients matter and it matters so much that when a prosecutor uses information that he learns during the course of an early example what the the record is not perfectly laid out and yet example of anything when and testify i heard matthew rapes the other girl and that was the subject of the prosecutor's prior represent but for the prosecutors problem that the witness might have said that but the problem with the per se conflict of interest when a prosecutor uses information that you learned not confidential information information matthew was involved in an incident with another girl and we know from the record that that particular incident was the subject of the prior representation and we defense counsel jack dead and that's the point where the prosecutor says wait a minute econet anything to do with my pri representation but instead what he did is the prosecutor stood there silently it's clear from the really reading of the transcript that i frankly he's flabbergasted i object i don't know where this is coming from he starts throwing all sorts of objections out then at the close of then at the close of the state i didn't realize there was even this was even going to come out or i put it filed a motion before i don't know how i guess i'll have to decide how i'm going to do it at the proper time this testimony about past stuff i didn't realize it was coming in  and offered substance of other crimes evidence is admitted for a variety of reasons substance a plea is proof of guilt also to explain the course of an investigation and there are all sorts of things where the information is not that with who is the prosecutor asked questions that is certainly related to the second argument that we make on appeal the notion that that the prosecutor in this case middle misled the court and this led to fancy counsel by saying liar to trial this information isn't coming in and then for the first time at trial in the midst of his direct examination of the plane it eliciting this testimony so that is certainly one alternate grounds for belief but the per se rule is important in this case the per se rules an the only questions have nothing to do with what the lawyer learned but only go with what the victim heard or believe him even using the true rumor which of course w as a prosecutor and i think that's where we started in this case when he initially shows up and says i'm not going to use this information ok so we've got an honest practitioner who who was trying to do the right thing with me is not going to use any information he learned from matthew was involved in this other incidence and we know that mr thompson was the attorney in that other incident is enough evidence to let us know that mr thompson would be house and told her by the way that you us back to is it says a prosecutor can't prosecute a case if the facts that are closely are woven with the prior representation are involved in this case and that's what happened the per se rule it's about protecting practitioners it's about preventing intentional misconduct which is what it feels like once we get to the middle of the case where he's introducing this evidence by surprise the room recognizes the likelihood that this information that an attorney receives from a prior representation has the ability to have a subtle and even unconscious the fact on the conflict attorney's performance in the current case the rule also recognizes the unique role of prosecutors prosecutors have a duty to prosecute and they have a duty to prosecute without interference and they have a duty to another client that duty interferes with that with that responsibility prosecutors also have a duty to ensure that the rights of the accused or honored especially in delinquency proceedings figurehead of that office who makes charging decisions who is the face of th can so your honor i think that would be problematic if the state's attorney at the beginning of the proceedings hadn't sat i'm not going to use the information from the prior representation trial it came out that six trillion previously represented the response any proper says well i'm not going to do that because i'm substituted out that you should raise that motion to defense counsel with the what happened was the defense counsel so they didn't know this was going to come up and brought to the courts attention the court then says well i didn't consider it substantively for whatever it's worth it goes really clear when you read the that the transcripts in their entirety is defense counsel was surprised he had that jackson over on more than one occasion continuing to object wasn't going to get him in any place at this point see my s professional conduct which is one point nine dealing with one representation certainly the respondents reading the journal much further than the facts of that case would permit so therefore it is not controlling on this court and with the issue of of this force issue is controlling and that deals with the issues of presumed confidences that were given in prior representation and responded has the burden under shorts of showing that under and the next element of that is the would quote materially advance the new clients position and subsequent matter here the state is new client of states turning thompson who had been a former attorney for respond spoken with state street thompson about this particular case i also felt it would not be appropriate for me to time to do so in that if it were to request any sort of confidential information ascertain whether there had been in fact any confidential information learned in this part representation so my brief was written on the basis of the record that is the only thing that i personally know about the case is what i read in the records so arguments made about what or whether or not to strain thompson had in fact known certain things when asking questions such as why not it's not clear from the record whether that was an attempt to intentionally  they didn't intend to elicit evidence and rule for four feet the other issue is whether this fact any evidence of another crime here it was a rumor that affected the state of might and it's time it's important to he would be contrary to the purpose of why it's offered for there to be any purpose to try to prove this being true it doesn't matter whether it's true the truth is irrelevant the only thing that matters is  are some bad behavior that she hears about by room the girl who either reported bad or had happened to her was bullied and treated badly in school so then she sa i really want to buy you know back because the same thing might happen to me right yes then what possible reason could there be for the prosecutor to go beyond that whether to rehabilitate after cross examination or not they asked more about what may or may not have happened to that girl in terms of whatever the misbehavior was whether it was an attempted rape or grow her a fondling judgment also the state emphasizes that the defense had agreed to proceed and the claim here is that there was all sorts of objections there were complaints or now but no specific objection i think other than the first one which was that somehow there was no substance or foundation for this because there had been any prior anything that resulted from the prior case no allegation however that there was  close the comment that the if the defense claim is that miller recognizes a in a per se rule of conflicts it's extraordinary bush extraordinary reason it should be limited to those extraordinary cases in which miller had a doubt now at that point the court could have said i found those three kids absolutely unbelievable but he didn't he said the pendulum really small new for me there so that gives us this notion of just how close this case here is and then it wasn't until the rebuttal witness this is a case where the error goes directly to credibility my second response to that is judges are human beings is what judges are human beings it's closer and it is eight common experience a common human experience that we hear things we absorb knowledge that affect our perceptions as human beings even when we don't want them to even when we try our hardest to set them aside if the fact that we always assume that judges are able to set that aside there just be a per se rule about bench trials none of those have been injury problems none of those evidentiary issues eventually trial are ever going to warrant reversal because judges never consider it improperly but instead you're correct it is apply though to the third argument the prosecutorial misconduct argument fact that if the defense counsel's objections weren't enough this is a closely balanced case and this is the kind of conduct the prosecutor should engage and prosecutors shouldn't be able to say before trial i'm not using this evidence and then with no warning at all string that information in them and in mid trial there is no argument that prosecutors can't use this type of information but if they're going to have use it they're going to have to use it