supreme court certainly in my experience relief is granted only in those cases where a federal court is left with the firm conviction that something has gone fundamentally wrong in the state for seeding and let me begin prosecuted by a political opponent after that political opponent gary yancey admitted that both he and his entire office was disqualified ethically from this prosecution the state court f by which district attorney n c and his deputy james supposed without continued to prosecute the case the verdict after disqualifying their entire office to be a charade that raises serious questions about the fairness of these proceedings the state court however felt that it could not reach that unfairness because a motion to disqualify so called that and the all and the office had not been made prior to verdict and we ordinarily very well might not have done they have done something like this i have never seen a conflict case your honor which was resolved on the basis that counsel came in and said oh by the way the reason i didn't with a conflict about why they do things is that's why we have conflict free council because it's virtually impossible then to know what their motivations were in a given situation such as this we've got felony counts this defendant is guilty of five phillips there is no public official in the spirit of california that does not commit a felony every day under that standard the reason we demand conflict free counsel  and in this situation is being told that we kick you off the case and you have a right to take us off the case and nobody makes this motion how do you sort through that i never ventured a hearing in which counsel says was there a tactical reason to do this very often there's two good alternatives open to any counsel the reason that we demand conflict free counsel is is being free of a conflict is the only way we can be sure that the conflict doesn't operate here these are our warriors who were told by this judge you why not to talk to your client about this you want to protect the interest of a major prosecution witness the court created a conflict are so so how do we sort through that and it can this case i submit to your honor that if you have a factual finding that a lawyer is going to do something and by the state court they've been there it's their intention and they don't do it and they worst of all situations he started as a witness in this case he gets up in closing argument and talks about his personal experience he should have been disqualified for that reason alone i mean what competent counsel allows the district attorney to get up and give a closing argument about of the instant the district attorney was part of it it's worse if he was a witness they would have gotten a chance to cross examine him instead he gets up to give his version of events in closing argument not subject to c conflicting counsel gets up to examine a witness whose we don't know successive representation with the examination starts to get close to areas where the witness might incriminate himself and the judge has counsel i mean imposing upon you a duty as an eternity to respect you know witness a fifth amendment right so conduct your course examination aggressively but you have an ethical duty to protect him so he doesn't incriminate himself and does that want to create the most let's say these counsel had not represented miss our state or before let's say they hadn't but the courts for whatever reason have the sense that she had these matters these very embarrassing matters and he said to counsel look you i want you to protect the witnesses interest in confidentiality as much as your client that's a conflict created that has nothing to do with prior representation the court issued an order to a law helpful to their respective client you know just another aspect though this of course that the court has to confront is that to the extent that we move away from the conflict analysis and say this create a conflict we have for the first time apparently in the history of united states criminal jurisprudence a gag order that not only lasts over like that last four months when the united states supreme court has approved a gag order in one context and one context only a break in the cross examination of the defendant and the government is asking this court to say that there are no constitutional implications on this sixth amendment right to counsel if a court imposes a gag order on a defense attorney not to talk to their client when the supreme court certainly has said the opposite and no court has said this the government says oh no if the order is somewhat reasonable if there's a reason for it then you know there's no problem with but but what is that was imposed was saying look if you were a member of your law firm has a duty and i impose on that member of the law firm a duty to respect that he has to respect that by case then we're dealing with the fact and  made the point there was an overnight or whatever big it was group rescinded before the weekend and the courts would look we can't get into this kind of speculation about what difference that might have made you cannot issue gag orders on counsel other than in the rate was represented in a new trial motion and number of issues were raised including the conflict issue counsel had an opportunity at that time to raise the strickland issue or this factual question and did not do so the appellate court also found i think  was the concurring judge found that in fact the trial attorneys were cooperative with appellate counsel and there's no indication otherwise with regard to the brac being burdened by the gag order argument i understand in the court of appeal on a subsequent k b s the issue turned into a book was misled by burke about the the nature of the contempt proceedings and i think proceedings you know there were criminal contempt proceedings well there were but they were dropped your honor and there was a state court specifically found that this was not evidence that would have been admissible doing ph anyway well this may be because it was too old and a was to get other things in a case like this just the natural thing would be to put an investigator on on this very important witness and find out everything i believe and i believe that he did your honor did we find that well provided on personal time that letter did not testify beyond that and he tells her specific things and created by the gag order was not to challenge the prosecutor and the question is why shouldn't we find out whether that's true or not but there's a number of resist of all it's entirely  conflict and the only question is is consequences of that conflict so you know conflict is right thing or but whether or not instead an adverse effect is another issue i want you to address the issue of the jury having this county employee on the jury well i think hung in the comic of a county employee was just that it's tough to be a county employee because the budgets tight i don't think this procedure had there not been two attorneys i don't think that this would have happened i don't think that the court or the court probably would have lifted the order earlier and certainly given that the order was lifted before trial and the only a legit prejudice is some nonexistence impeachment that's ten years old that there's no there is absolutely no need to look into this other issue i have another question  me i don't understand how there could be sufficiency of the evidence on the question of whether she directed somebody to do something when the state court specifically said she didn't direct that that did not in fact a record if i had to do that it was just what they disqualified was grazed in at the new trial motion and on appeal the state court said we can deal with it because that the trial counts and he issue of this incredible fact of the prosecutor arguing be playing a very clever going you know he would try to be in the case and then of course of the charging document up and she'd have a you know with the deprivation of a six and a right to counsel i mean we don't have the record but i got to tell you the whole thing and seem right to me stopping it isn't right your honor and the response to your question was it was an agreement that is just the point the government is there you know how you can fold i don't see how that agreement was made that this would would go on it was raised quite frankly none of the parties at trial here including the trial judge who issued an order and the government just said he issued the order to preserve  record suggests that the reason it happened was because the prosecutor said i'm going to kick you off the case the defense lawyer said i'm going to kick you off the case and then we reached an agreement that they wouldn't it was too much trouble and the person who suffered in this was the different lawyers and then doing i you know i submit to you and you can judge this yourself i could i could ask you the nine percent of the lawyers what the ethical rules on conflict of interest in a criminal case so i couldn't answer the question