case having said that the dynamics of this case demands some some something beyond let's pretend because what happened here and perhaps for that matter has the facts are pristine they are not tonight subject to de novo review and what we have very simply is the defendant's attorney representing the murders that with the taste and victim there is no question that the prosecutor no there is no question that the defense attorney with an s judicial process the criminal justice system demands something more than what isn't commented to the defendant in this case the answer is yes the system demands  in the public demands because if there is no integrity in the system the system will crumble of its own weight what we have here in the dynamics of this whether they be repeated again i don't know but i do know that this gentlemen one hundred one does father of four somebody who was in no danger of getting a good conduct medal i'll tell you that the state for its part before this court suggests that whatever has been ongoing for the last forty odd years before this court in the area of conflict of interest is not work can't exist anymore and as a result of that they me suggest perhaps respectfully perhaps tongue in cheek i don't know that you would dr mickens versus ta a five to four decision where the question before the supreme court was not the question before the court in this case because in mittens the same trial judge appointed the conflict in lawyer for the victim and defendant but the lawyer did not reveal it at all and the prosecutor did not reveal that at all but the judge had pointed the same lawyer for both so the judge knew or reasonably should have known and that was the question in michigan they had a narrow five to four decision justice scalia in a rather narrow opinion took the case for the question presented but when well beyond that and decided for the majority that you know there was no adverse impact because of the conflict and therefore there is no relief to be granted the for the something the justices took a great deal of issue with everything just  quoting extensively from justice stevens and he wrote with the benefit of i believe it's an eighteen for united states supreme court decision not to conceal from your own crying the background of your interaction with other clients is itself a deception that can never be condoned and then justice prior g fact a duty to permit illinois citizens to have the benefit of the right to counsel and due process as it sees fit under our  you know there was no duty to disclose by the prosecutor or the defense lawyer or others because even though there was a  should know perhaps something similar to a forum  i know that but but at least in the prescribed the argument is that though defense counsel still represented the name victim he did all he did so only because he had no chance to withdraw because the the victim had may please the court my name is john doe ackerman assistant state's attorney from cook county and i represent the people of the state of illinois in this case your honour's this coach the band and one way is unique per se conflict of interest rule once and for all it's unworkable no other jurisdiction in the country uses such a rule all other jurisdictions including the united states supreme court and there is no dispute of the united states supreme court to decide conflict of interests by looking to see if there is an actual conflict that is whether there is an also this court is held expressly the per se rule does not apply when the defendant is represented by one assistant public defender and that assistant public defender is required to make an ineffective assistance of counsel claim against a previous assistant public defender who had represent be unworkable and instead applies only to the actual conflict of interest standard that is this court in those situations looks only to determine whether there was an actual adverse effect on counsel's performance a single standard should apply to other issues and therefore in washington in one thousand nine hundred eight this court said well we already applied that actual conflict of interest rule to multiple represent koger pensions the supreme court doesn't do anything differently but as we explained in our brief that was an overly incorrect lee narrow reading of the color versus something case the sense that it's quite a case in the u s supreme court supreme court's made it clear that this actual conflict of interests standard does not apply just to first the defense lawyer and possibly the prosecutor as well have advised the judge regardless of which will we ideally are on their defense counsel would have alerted the court to this before trial the prosecutor in his defense did not leave until then certainly given just this circumstance there was a possibility of actual roger just wasn't there there was a possibility your honor and well if this has been brought up before trial the courts here we know because the trial concluded that there are absolutely was no i certainly had the defense lawyer certainly had significant contact with the victim of the crime in which he was now the defense lawyer isn't that right years earlier on or it was the time that the u s supreme court as part of its conflict of interest analysis the first the first part of that is that if it is brought to the trial court's attention the trial court should analyze it before trial as to whether there are any possible conflicts the actual conflict of interest rule comes into effect when the conflict issue is raised after a trial and that's what we have here your honour's and here again as far as the per se rule goes was no contemporaneous relationship with the victim this relationship that effectively ended years earlier mr daly on had not spoken to mr subpoena in over three years by the time this trial began not a word not a letter nothing nothing from him that can hardly be called a contemporaneous relationship at the time this trial began that's how it would be the state know that your honor according to record the state did not was not aware that until the middle of trial mr daly on according  entirely different case because the contemporaneous nature of the representation of mr subpoena would then if he's back in town he's back in the jurisdiction then we're talking about a possibility that this is contemporaneous relation or representation that is representation of an actual state witness this court held morales that it only if you take per se rule only applies to those witnesses that actually testify not to those who are just potential if you'd actually appeared would be an entirely different case your honor here he didn't appear it is one of the reasons for the per se rule that these when you're in this situation it's just fraught with such danger it ought to be address that's the rationale your fine lines that have to be drawn in cases like this a case like this where there's absolutely no dispute whatsoever that there was any actual effect on council performance not once has the defendant argued that his counsel's performance was adversely affected not in his convict trying to convict post conviction petition now before the appellate court and not before this court there is absolutely no dispute your honor us but there was no adverse effect the fact here that were reduced to drawing these fine lines to side whether there is a per se rule not goes against the heart of the six men if the sixth amendment is the u s supreme court's make clear doesn't protect against mere theoretical possibilities probably those that actually occurred in here yes the per se rule protects against these potential conflicts but here the trial is over and the fact that there is no dispute over any actual adverse effect just shows why the per se rule is in a political if we don't back guess how could counsel even separate himself from honor mr de lune made clear in his testimony in the evidentiary hearing that he did not rely on any sort of confidences or any sort of information he learned from mr subpoena we can learn whether again the actual conflict of interest and it goes to whether there's an actual adverse effect there was absolutely no adverse effect here given that prior relationship again defendant doesn't dispute that effectively concedes it by not arguing it and here your honour's mr dal the such fine drawings and fine distinctions have to be made in a case where it is admitted that there is no adverse effect on the defense counsel's performance and effect admitting that there is no six amended by a lation just goes to the point to show why the per se rule should not be a political should should be abandoned once and for all not just to these three areas where this court has already abandoned it but to all situations and it hears what the you don't do what the rest of the country does what the u s supreme court does and apply the actual conflict of interest areas here's the problem why wouldn't the state bring this up to the judge when they gain that knowledge in in head off all of these potential problems because if it had been addressed at the time that this information came forward the judge either could have gotten some kind of a waiver from the defendant that he wanted this guy anyway and to go ahead could have had all this information it seems to me if you if you adopt the actual conflict what you're encouraging is exactly what happened in this case and find bind until you go all the way through the trial all the way through all of the proceedings and then you're guessing and then you're going back and taking a retrospect concern here we know what would have happened if this had been brought to the trial court's knowledge the trial court held back to the bench or hearing that there was no per se conflict and that there was no actual second category of per se conflicts that as to whether there's a contemporaneous relationship with the victim certainly there was no contemporaneous relationship even though we still listed technically as counsel of record he hadn't had any relationship with mr speight and over three years by the time the trial started it doesn't fall into either one of these categories but again your honors there's no dispute here there was no actual adverse effect the fact that again that we have to make these fine distinctions when we there's no dispute that the six minute self is never drama in his presentation but wasn't it drama that was more than just for a fact but also speaks the truth as i think about this if you pull ten people up a street and say that in this particular case there was no harm done to her na but i want to tell you one other fact and they had fact is that his attorney also represented it one time the potential victims get just out of history don't you think the overwhelming reaction would be mr ackerman's reaction that just doesn't sound fair and what about the integrity of the system here maybe the federal courts should look to what this so what this state does and per se conflicts if this if this would not be something that could be addressed under the actual count but rule so out we're speaking a lot on the facts of this case certainly that's what we look at but what about the overall system is the integrity of the system but it is shoe in a case like this regardless of if prejudice can be proved and that's what percy conflicts all about is that on trial here is well no your honor here when informed of the facts of this case given the fact that this representation was effectively over years earlier and certainly there was no contemporaneous relationship your honour's this court has already held that there has to be contemporaneous relationship if this i change if you say that he represented the potential victim of this case years earlier and you don't tell them whether he was still technically is neuer or wasn't taking his lawyer there the public's perception may rema one no so there's a there is a little bit of a difference there there is your honors but only in the fact of what would have happened if he had withdrawn or not here given the fact that if you also inform the public of the it the advocacy and the strong defense that mr de leon put on on behalf of mr hernandez in this case the public would be a swedish they would be sued they would be happy to know that my reply brief you told the motivated reader that the public has an interest in all of this and you mention it four times in the secam two paragraphs toward the end of your opinion now justice kilbride disagreed with your analysis and suggested that if we're going to change something we ought to make it simple  conflict of interest whether it's per se actual pro tensional and in that way the circuit court judge would necessarily be advised by the prosecution and or defense and my opponent mentions morales morales came before this court because the prosecutorial sought disqualification of the defense counsel because of a conflict just as fitzgerald you asked a question about whether the prosecutor knew and had a duty to the prosecutor offered the list of witnesses which appears as an appendix to the  opponent to suggest that the prosecutor didn't know and didn't have a duty of course he knew of course he wrote the with the witnesses which included the  it is not adoptable there is no reason and i know in recent storms the corps starry decisis has been considered an circumstances and i thank the chief justice for suggesting my presentation was dramatic it's rather humble but it's on and i think you for your time and i'm dress