case number sixteen dash twenty one zero six marlin mcrae versus usa argument not to exceed fifteen minutes per side mr herskovitz you may proceed for the this is a case dealing with conflict of interest specifically not multiple representation but an actual conflict of interest the courts including this courts have generally held that there is a presumption that a lawyer will subordinate his own personal interest or that of the due process interest of the defendant in this case there is a presumption completely out of the window and this instance there is a a a different witness  testifying against the defendant not his co defendants pleads the fifth on redirect examination at that point court takes a break the fetter petitioner goes outside with his attorney an assett he file a motion going to file a motion you're going to pay me not if we win you'll pay me fifty thousand dollars that leads to an inference especially knowing the counsel in this case that he had a good feeling that that motion was going to be granted that there was merit to the argument and why i also asked for the fifty thousand dollars instead he may have been then he did he did not have to try the case again without being paid additional money but occurred now there is also statements from excuse me there are also statements from a an evidentiary hearing conducted in michigan attorney discipline board and court should take note of the fact that the michigan has suspended mr barnett license for three years in order that he pay restitution of forty seven thousand dollars to the defendant within that hearing mr barnett obviously says he didn't see any of that the you know the next question is restitution for what for the three that that he's client had paid him or for the failure for the alleged extortion or what what was that forty seven thousand dollars there was no explanation from the disciplinary board one can assume that the court or the board felt that the representation was  only to mr mcrae now i mean the disciplinary hearing had to do with actions not only in this case but several other cases including threatening a prosecutor in wayne county as well as taking money apply but there are there is a carve out that being color versus solvent in color we just have to show that in actual conflict of interest occurred in inversely affected lawyers performance i mean it's pretty evident from the facts of this case that there is an actual conflict of interest mr barnett's want for fifty thousand dollars on one side and the defendant's due process rights to a fair trial and in representation of counsel on the other mr barnett was asked to do something and he didn't do it that's where this case differs from other cases that it's cited by sister council as well as by the district court specifically phase on in which phase on the there is an accusation of conflict of interest but in that indicated that there were there was a color blue argument for the motion for mistrial and marvin barnett refused to file the motion again unless he got fifty thousand dollars to do so that is where this case differ differs from beats  from his client in order to do something which he has an obligation to do is we as attorneys have an oath to zealously advocate for our clients that's not so happening here here he's also the advocating for himself but we also know what the consequence was that he didn't file the motion in sense that if you don't file the motion then he was asking for it to be stricken t is his client specifically asked for him to do sorry and you can and it's very hard to say that this is reasonable trial strategy when you add in the fact that he is the managing money to do it as opposed to doing it and running the risk  i understand but it's the fact that he the fact that he's greedy and once money wherever he can notwithstanding his obligations to deter and as an attorney doesn't it doesn't follow from there that the best course was to have a retrial if one of the options was just excluding this testimony altogether but it comes barnett specifically makes that that extortion request there's no more attorney client privilege mr mcrae testifies during the evidentiary hearing for the attorney bar discipline board that the other was  hostility between mr barnett and mr mccrae and mr bernard going through the motions unlike how he normally would be presenting cases i mean mr burnett is known for a specific type of presentation and read the minute that he didn't get the fifty thousand dollars and there is hostility between the two the typical marvin barnett type of case is got and it's just going through the motions doing whatever he the least amount possible to get through the rest of from the record if if that means general propensity how do i put this nicely mr barnett takes a three day trial and turns it into a seven day trial he likes to hear himself ta you can see a marked difference from the beginning of the trial after this occurs whether it yes i mean there is and i apologize if i wasn't doing that previously there is a definite marked difference and i only have so much time left so we just want to explain to the court we would ask that the court rule in this case pursuant to kyler as opposed to having to do the more stringent stricklin standard but even if we had to abide by the strickland standard we feel that there is and the prejudice but the prejudice is that he doesn't have an attorney acting on his behalf and we also have to take into account that the court didn't rule on striking the testimony for five days so the jury is sitting processing this information for five days in their head until the court finally strikes it and as much as we would assume the jurors always listen to the instructions we also assume that attorneys are also going to put their interests of they're go subordinate their interest to the client that didn't happen here so with that i will reserve my five minutes  good morning sally baron's on behalf and states man please the court the issue in haiti is corpus juris prudence is simply was there a failed fair trial and there is no reason in this case to extend kaila versus sullivan standard to the facts of this case to conflict between a lawyer and his client now that this court or the supreme court has done that the supreme court has cautioned against the expansion of the standard mickens versus taylor and in this case instead of doing something to ensure a fair trial it would in fact actually result in an injustice because there was no prejudice to mr mccray regarding the alleged motion for a mistrial in this case if anything  mr mcrae received the best representation he got it could have gotten the best outcome he could have gotten in this case in an if the case had been retried there is a substantial possibility that mr hodges could have been called and he would have been called again to testify and that he would have testified in that and that case any issue that had happened where he pled the fifth amendment would have been cured absolutely apparently we're both having that trouble today but  my point is simply that mr mccray got the best possible outcome here because mr hodges testimony was struck so if you apply the kaila versus sullivan standard it becomes a there's no reason to  i don't think that's possible in this case if you read through the testimony of mr hodges it's important to keep in mind that what happened here is mr hodges testified on direct he was thoroughly cross examined by mr barnett and then on interact that's when he pled the fifth very shortly into his redirect testimony after being asked about his plea agreement government counsel asked him about what he had done in a previous case where he had cooperated with the government and that was the point where he didn't want to talk about what he had done in that previous case and he pled the fifth it's hard to see frankly the prejudice to the defendant at all in his pleading the fifth in that situation the government argued that only the redirect testimony should have been struck and judge monye initially when the when it first happened suggested that as the as the cure for the situation it was only after a few days went by and the matter delved into her wandered into different areas with with mr barnett threatening of the witness that the judge decided to strike the entire testimony as this court knows a motion for a mistrial i'm sorry mistrial order is a last resort and these types of situations and the preferred method is to strike the testimony or a portion of the testimony and give a curative instruction to the jury moreover it is important i think for this court to recognize that if it were to find that a you can even imagine in this case had mr barnett done the opposite let's say mr burnett had moved for a mistrial and inexplicably had won that motion the argument on appeal now the argument for ineffective assistance now would it would be that mr barnett had done that instead of simply moving to strike the witnesses testimony in order to get paid for an additional trial we would have had the exact opposite and seen the representation cases as your question judge white touched on is that in those cases it is difficult to tell what the effect of the misrepresent or the multiple representation was on the defense the lawyers  essentially stopped from talking instead of actually making a making a point where they were making an argument that they should have made and that's missing here here we know exactly what the alleged prejudice was to mr mcrae and so there's no reason to apply collaborative kyla versus sullivan because strickland gives us gets us to the right question of how to determine whether a trial was fair moreover in this case as we've discussed there simply wasn't any prejudice to the present discuss there was simply wasn't any prejudice to be not moving for a mistrial it was unlikely to be granted and the evidence in this case against mr mcrae it overwhelming to different people testified that he had been involved in a conspiracy to distribute cocaine with them for since the ninety's into the into the thousands this case was tried in two thousand and eleven moreover there was a search warrant executed at mr macrae's house in which the opposite has defied drugs and guns were found there was a bag that had two bricks of cocaine in it which had mr macrae's fingerprints on the outside the lawyers conduct was not affected in a way that prejudiced i mean where the lawyers kind of was not affected in a way that prejudiced his client i don't think you can say that a trial is fundamentally unfair where a lawyer got the best outcome took the best course that he could for his client i also have to disagree with counsel statement that mr barnett it's kind of changed throughout the trial he continued to argue aggressively on behalf is quiet even after the moment where mr howe the allegation is that mr hodges pled the fifth and then in the hallway outside after that mr brown had this conversation with his client and of course we haven't had a hearing on this we have not heard no one's been subject to cross examination on that issue so it's just the allegation at this point but after that point in time a great deal more happens that is on the record where mr barnett is arguing with the court and with the a usa and he is just as aggressive in that time period as he was before i simply don't see the inference that my opponent has represented to the court regarding his regarding his behavior after this happens moreover my opponent state and state a couple times when mr mcrae wanted this motion this court has often held that a mistrial the decision of whether to move for a mistrial is a tactical decision that rests with the lawyer and in this case as i've stated there were many many reasons were the scored through firing if there was no ineffective assistance of counsel it would essentially be giving permission for attorneys like mr burnet mothers to take actions only for themselves and to subvert the needs and wants of their clients and in a similar vein if this court were to find that there is ineffective assistance of counsel it's not going to open up a floodgate of similar type of tactics it's counterproductive to even make that assumption because why would an attorney for a nominal amount of money give up a potential career as it was what's happened here with mr barnett with his suspension and his likelihood that he's not going to be practicing law any more why would they give up an opportunity to make tens to hundreds of thousands of dollars in order just to get one outcome in one case so to argue every have to have an actual conflict of interest in that there's an adverse effect on the representation hamper everybody else down the line i mean this specific case obviously is different than any other type of culinary interest again we go back to the you know  typically it's multiple representation or literary rights or asking for money not getting paid it but still doing the work here he asked for money didn't get paid and didn't do what he was asked to do which is completely different from what this cow this financial complex situation i mean do you have were you know there isn't good to the best of my knowledge to the best of all my research that we've done over the past six years on th