says this case i think talks about a problem in our in our adversary system and what happens when an attorney really abandons his client for a number of reasons at a number of different junctures in the proceedings think the breach cover a lot of detail i'd like to focus on what i consider a couple of instances that are serious instances of abandonment of mr martinez by his court appointed attorney mr and this case goes to trial in june one thousand nine hundred ninety and that is the time of a communication before discovery before the grand jury transcripts are available after the time there is really basically as mr ellsworth testified at the direction of mr men and they repeat basically that instruction we're not we're not going to listen to you essentially we're not going to do what you've asked us to do about the case  and mr ellsworth essentially then for the first time has a face to face meeting with mr martinez during the trial not before the trial but during the trial so that his attorney who does the cross examination at that point mr ellsworth who comes along to assist mr tooth meant has not met mr martinez before the middle of trial at the march hearing on mr martinez this motion to substitute counsel mr two thousand was the only attorney present no other attorney had been involved up until that time and at that moment when he had a duty to his client he abandoned that duty in a number of ways first of all when the prosecutor said well if mr martinez if you want to tell us what's going to happen you have to waive your attorney client privilege in order to try and get another attorney that's not a lot in idaho it's not the law of before federal courts that hearing should have been held in camera to provide mr martinez an opportunity to tell the court why he needed a different attorney why the motion for substitution was valid and yet mr two thousand didn't stand up and say your honor there's that the prosecutor shouldn't be here this should be held in camera instead he risks represented to the court what occurred and he indicated to the court well i've  investigated this this these allegations and there's no substance to them when in fact at the evidence you're hearing we know now that he didn't investigate that that he didn't look at the record that he hadn't talked to anybody and in fact there were significant conflicts conflicts with prior representation by other attorneys in the public defender's office of the complaining witness and the other prosecution witnesses let's pause on that one for a minute but whatever else other witnesses were represented by another attorney in that office what the state argues well he didn't learn any information from them we didn't learn we didn't have any confidential communications that were  found out about but that's exactly the problem that there was no attempt to find out and present information about these witnesses and i think that there is that at least an i and if so what was that or well basically what was found out is that list of this church has been never told mr martinez that there was any conflict that there was any representation of the but my question is i've investigated conflicts but he hasn't he admits that the evidentiary hearing that he had investigated those and as a result the judge never has a full hearing to find out whether this is just a conflict of personality or whether there  substantive conflicts here he would have found out had there been a hearing about the witness mary police so that this due to the heavy personal conflict with a personal belief that she was mad at him that the because of the way that this witness had had the witness this boyfriend had been represented by mr tooth and she was mad at him and he didn't call her as a witness and that witness a question for your column and i'm going to rethink this based on what i said substantial similarity or the similarity in the former representation in the new of crimes and and so the question is can you continue to represent without telling the client that member of mr martinez knew nothing about this and it was represented to him really that there was because we're going to add to the republican line three minutes so if you need any little time over ten minutes you think your honor hopefully i will not have to please the court orginally rises and falls on this actual conflict of interest claim and sort of like to discuss that first but i would like to first correct a couple of things that have been stated here  testified that he didn't recall that the conflict was he couldn't recall that not that he didn't investigate it and regarding the phillies so dislike of mr t issue is actually not properly before this court because it was raised for the first time in post hearing briefing it was not an issue upon which an evidentiary hearing sought in the federal aviation to sion furthermore the state regarding the lack of contact there was very little contact between the december thirteenth and initial communication after the arraignment and the time that this for martinez filed his motion for substitution of counsel but only a month and a half elapsed mr hanson had communicated with the defendant  not in a conflict of interest mr ellsworth is a rather prominent criminal defense attorney in the boise at this time and i think well respected by the in the state in order to show an actual conflict of interest or of breakdown of communications or whatever he wanted to and assert as the basis for substitution of coun ultimate constitutional question the federal court has to answer is not whether the the should have had that hearing or not it's whether or not the error actually violated the constitutional rights in discuss traditional rights in that the conflict between martinez and his attorney became so great that it was altered in a total lack of communication or other ter martinez has failed to show that there's anything that should have been communicated about it was not that if had it had been presented at trial or sentencing would have just no communication whatsoever and of not presenting defenses that were obvious or other kinds of things that would have been obvious there's knows nothing here in this case mr martinez really wanted to engage in a campaign of character assassination against the victim sheryl wrong by presenting information that she was a prostitute that he had paid her on that night that she had lots of call outs from the say one  agent new escort agency his attorney made a tactical decision but that was not relevant information that that was actually harmful beating up on the victim in a case is generally something that you know leads to derive sympathy for the victim and juror animists towards the defendant that was a smart tactical decision in this case you know is that even be located at the time of martinez it was trial only in her affidavit that she asserted she was in jail at the time there was no nothing to establish either way  thirty six it's the affidavit of five but mary police so it says i went to christa quince to do my laundry when i arrived there i saw cheryl in the bedroom she did not have any bruises or cuts or appear to have been beaten in any way she was not crying or asking for help and did not appear to be in fear of her safety of life she could have left through the bedroom window the back door if you chose into a cell and that cell was not in the area at the time i saw her i left and returned an hour later to change the laundry i saw sal and cheryl sitting in the living room cheryl was smoking a cigarette and i did not sense any tension between them they were polite to each other and cheryl did not ask for any help or state that she had been raped  cheryl did not ask for a ride from the trailer i left once melandri was done that evidence is critical evidence on the issue of consent yes that it happened after the alleged instance or during the time of the alleged incidents because  contends that she was you know this continued over a long period of time that's contained the affidavit i wasn't allowed to call sheriff police so the court rejected an evidentiary hearing on the basis of police now so her evidence i think is critical on the on the issue of consent and it's an independent witness the fact that she was involved in the legal system is certainly nothing unusual with any of these witnesses the fact that wrongful trailer is not dispute absolutely but she contended that she didn't consent wasn't wasn't happy try to you know was looking to escape and looked escape had bruises all of these things that were alleged to have happened she didn't go directly at that point to the police it's not until later when that you know several hours later that there's even an allegation that's raised a ruckus on parole at the time using drugs concerned about what's going to happen to her this is certainly evidence that should have been produced  affidavit that she wasn't contacted to things dictate against the fact that this was a reason tactical decision number one there was an attempt to subpoena mary police so in april for the april trial that was vacated statements you're going to hear from this witness is going to be helpful to us doesn't appear that's not a reason tactical decision in fact he probably said that and there's no you know the record isn't clear but there's a lot of hostility between mr two thousand and mr martinez by the time the trial is not talking to him he's not listening to him he doesn't he doesn't meet with him about his testimony of this year two thousand and he has this other junior attorney who just comes in and does and does the direct examination mr martinez and that's it so i don't think that there is that i think we've shown that it's not a reason tactical decision about about calling mary police in regard to the what's called character assassination that's not the purpose of the evidence about the a one escort the evidence about a one escort is that cheryl runts was working as a prostitute that very night there were there was we were not able the district court rejected our requests to do else's to support mister martinez his argument that she was out not just being a prostitute in the past but actively engage in prostitution the very night that this was going on and that evidence would have shown that it wasn't character assassination it's permitted under the idaho rape victims shield law this evidence would have been permitted yet early on the attorney wrote a letter and said we're not going to test this material there's no reason confusion among in the in the physical evidence and this is the case it's it's mr martinez his word against your old cheryl graham's word and and also krista cohen and if you add in what should have been married police that there is a reasonable probability of a