right our third case for this morning news rodney washington against  unreasonably applied for and against california the supreme court decision which clearly establishes that a criminal defendant has the right to represent himself a trial indeed the state devotes the bulk of its argument on the  arguing that a mani and tate are wrong but those decisions are clearly correct this court should follow them here so here's my question for you about that in the earlier cases  just had kind of a clean situation where the judge said i don't think you know enough about all just a legal background to represent yourself actively and purported to apply wisconsin's close it rule and we said no you know very clearly says that house whether you know the rules of evidence or whether you know about d n a or whatever isn't pertinence fine the trought the state trial court seems to have made exactly the error that you're talking about seems to have said this is going to be all about d n a evidence you can't do this so i'm going to force you to continue with this lawyer you don't like by the time you get to the wisconsin court of appeals you have this discussion that mentions mr washington's behavior in the courtroom but brings it back to confidence and so not to stand alone now in this court the state  altogether the question about d n a knowledge and is now saying oh you know mr washington was misbehaving certainly a judge under fred it doesn't have to allow that kind of person to represent himself so where are hears opinion really matters its conclusion was that mr washington was not competent to deal with the d n a evidence but it gave two reasons for that it concluded that it was reasonable for the trial court to think that he would not be able to properly focus on and understand the complicated d n a evidence so they understand her that's what the trial court said which i think you agree was was on reasonable well that looks exactly like a money yes exactly and then there's the focus on point so the state appellate courts that mr washington and these these very irrational ideas that he wanted to focus on he thought the case should be about and you know my state fighting the prosecution's d n a evidence i think that would probably have been very hard to do when you have that sort of d n a i have a good evidence against you but the state appellate court took for granted that that's what that was the best way of presenting the defense for mr washington court seemed to look at the record as a whole should we i mean are we required to stop right at the time he said no you can't represent yourself judge and he had that was not he had done so he had done maybe one other thing but he hadn't he hadn't refused to come to court he hadn't done a lot of the things that he did in the days following so where is that where is the point that's right judge but most of most of the supposedly bad behavior that the state references and that the state appellate court seems to be they really talking about words were things that happened after the denial of mr washington's for other rights and i think as a general rule once your constitutional rights have been violated which happened in this case when the trial judge said no i'm not going to let you represent mr washington argued was that the seal on the warrant had been forged and a warrant would have been sort of back needed i'm not exactly sure but that's it something along those lines mean both of those are somewhat a to the extent that the state appellate lawyer would have thought but i mean to what extent are you making the argument that what we're looking for is the trial court's reason for denying the self representation motion and unless this trial court has abilities that most of us don't have that recent couldn't rest on things that hadn't happened yet he doesn't know that they're going to happen so just as you would evaluate a warrant based on the information the police officers had at the time they his behavior as a reason that's right the trial court and referred to his did not complain about his behavior certainly didn't suggest that it was one of the grounds for denying the threat a request and haven't been that bad as at that time that's right arguably mr washington became frustrated when his motions were denied and started acting out and it's like if i could make this question a little harder for you mr marks and mr sevan next mary my concern here guess there are two ways of looking at it as as she to the trial judge couldn't see into the future and when the when the state appellate court said you know on this record it was reasonable for the trial judge to conclude that mr washington can be considered in determining whether it was right to violate someone's constitutional right in the first place seems they didn't want to see if so perhaps that's true of the state the state doesn't address basically one of the behavior it and what parts of its narrative came to four verses after the denial but they do paragraph thirty three in particular the state appellate court's decision is what i would say focusing on the merits of the arguments that mr washington wants to make right and how foolish those those arguments are right and because they say leading up to his request to proceed pro se so it seems to me to say that the state court is relying on something post request is is flatly inconsistent with what the state court says and i would think the state itself can't rely on the post here that's not what the state court did the state court did though think that the kinds of things mr washington was trying to raise were so off base irrational obsessive as they call it  that one legitimately could say so as they summarize his inability to recognize and follow proper courtroom decorum and very little evidence of that or to identify and argue legitimate legal issues in his own defense made it logical to conclude that he wouldn't be able to understand the d n a evidence and then the cops say that actually seems to have been coming all the way back to the d n a evidence in the end which is the bad reason abs absolutely they come back to the d n a they come back to the d n a evidence and they basically are saying that mr washington's arguments were bad they were dumb arguments the good argument was the d n a evidence the fact that he focused on the bad arguments rather than the good ones show that he was incompetent which of course is flatly inconsistent with an all of these cases which all acknowledged of course per se defendants will usually make sure its arguments and their lawyers would and they're going to be worse off for going pro se in nearly every case and they're not asked to go pro se lyster lawyers refusing to raise the issues they're concerned about exactly that this this would really come up if if you have a defendant who is very happy with his attorney performance  should criminal complaint against a b c and then seven years later say well actually what we mean by a b c is rodney washington that's that seems to be the nature of the complaint they did since they just describe the gene on that location looks like sure that's right and my opening time is almost over so i'm happy to rest on the briefs on that point but i'm also happy to address any questions i'd work i'd like to ask you when you think the due process cl between right i think that the due process claim became ripe once the state courts that once he'd gone through the state courts presenting a state court argument and they basically rejected it and thereby violated federal right if that's right then a buoy claim could never subjected to procedural default i suspect what i'm concerned about but i would think that i thought your position was that at least when the state court of appeals took this approach to the to the identification in the complaint that that that was the unpredictable and indefensible change in state law and on the procedural default question the issue seemed to me to be whether we should expect that issue to be raised either in rehearing or raised with the state supreme court search so our position is that it was it makes more sense if you have  strong state law argument to present it up through the state supreme court rather than say rather than the formalistic requirement that a defendant say you know that the court of appeals is wrong on state law and by the way state supreme court if you agree with the court of appeals on state law you're also violating my federal rights so you would you would just say who we claims are excused from fair present many issues that's right your honor it would be basically futile to present the federal constitutional argument on top of the statement i'd like to reserve about you if was the court of public to touch briefly on the warrant issue first picking up where we left off and then turn to the the right to proceed pro se issue so my friend says it is procedural default is excused because the claim is not right until director view has ended over in the case metry versus lancaster to supreme court case he cites in his reply brief on page fifteen the supreme court did consider this type of due process claim review after the petitioner had presented it to the state court me that if the actual d n a has been described then the complaint is describing a particular person but if all you say is that here are some gene locations and you don't  any way provide anything that would identify this complaint as against one individual except maybe if some secret evidence locked away in a vault in the state somewhere which strikes me as a star responses is one of the it is a john doe complaint as our statutes plainly allow they say that you don't have to have the name if you if you have an identifier though in dabney there were identifiers so that it was very clear in the public face of the complaint who was being accused maybe not by name sometimes people have aliases sometimes you don't know what the name is but it was possible to identify the person where is that is not the case in this criminal complaint this criminal complaint is just generic d n a locations and the state's has all but we have you know other stuff somewhere else but it's not in the complaint i'd very uncomfortable with the idea of a secret justice system  that operates on the trust us where the state were going to do the right thing theory certain assert pushed back a little bit so that the complaint does say it matches and your hundred mentioned it doesn't say it just says we have i mean it's in here in the  realize that's me it's just unknown male with matching d n a a genetic locations and then it lists six genetic locations it doesn't say a word about what the gene is so if i can turn to dabney the case that my friend has said it is that is the law in which word we're judging the deviation from the standard devaney does say that identifying information extrinsic to the warrant is commonly needed that's the core commonly needed even when you have a non d n a but understand and dabney there was identifying information in the warrant in the complaint i'm very worried about the system that you're trying to construct in which there can be secret complaints we're issuing a complaint against john doe who committed a sexual assault against somebody in the city of chicago on january tenth twenty eighteen well what does that tell you it doesn't tell you anything and if you can that's and that's the yes but it was the based on the d n a that was in the vault and i'm not sure that's correct if you think about siblings if you only have six locations i mean they said that and certainly if you had  a profile of person a then i think the numbers that the wisconsin court of appeals is talking about are the numbers i would expect to see but six look sixteen locations so let me we're commonly used to in complaints ascribing the name of the person location in their physical description and so just appending that to the complaint i don't think it actually says so as the concerns of your honor's the legitimate concerns your honor is raising because you can't just look at and say yes the state has dot of their and cross their t s that you could if you thought it was about you subscribe to twenty three and me and find out if your d n a happened to match that i'm not so sure you could at least in the complaint here so in the in the written decision the circuit court denying post conviction relief and then the transcript that accompanies that decision that's in the record they talk about the technology that they used to actually develop the d n a profiles in this case and i believe david's kind of mentions us a little bit and talk about just like the level of technical difficulty you would need to have that we needed experience technician so i don't think the twenty three and me type technology was available in the early ninety's and early two thousand once again that's right and so that's my whole point here is that if we're looking at davis and dabney they a stablished rules in which we judge from this case and it's not such a clear departure that we can say it develops very violates the due process clause in particular davis says it rejects a particular argument that using new d n a technology should defeat them to match the warrant later should defeat the war and he says that's as that would elevate form over substance that's you know the same type of thing here that i would argue that the d n a is located in the databank the provenance of secure the states as you know here is it's one that matches requiring a pending things of pending information that you can't actually use to identify someone on the street would be for more substance some sort of point of a complaint really there is no point of a complaint you know so i disagree and the reason i disagree is because of this matching language and or let me test it once a litigation once a kernel prosecution has commenced i'm not sure what procedures those would be but i can imagine that actually happening and so i don't think it is a sort of secret vault star chamber ask type of proceeding this truly decided my friend has said that that is never the less the settled law here so we've taken that as a concession and then the judges are complaints against davis and dabney i don't think we are using the same d n a type of technology in the davis case in p wisconsin still just saying in essence there's a human being that a complaint simply says there's a human being with genes with these locations where is it providing more detail no so i believe now is providing more detail on it and going back to that d n a that the transcript in the hearing that than the circuit court made its post conviction decision on it mentions that even like including the numbers that my friend had been talking about and there was not possible under the old d n a technology so that's in that transcript i don't think we are using the old technology before davis mentions that the state had a transitionary at the transitionary period where there were retesting with newer technology and that's why the davis case came out and that in that same hearing transcript the state mentions that this type of d n a technology that th even lawyers not familiar with the courtroom practice so i'd like to run through what i think which would justify the court of appeals that essentially saying we have this obstructionist misconduct here so first his request to go pro se it's made on the day of trial essentially so obstructive in the trial that exceeding in this this procedure hearing that his own counsel thought that actually he might actually be competent to stand trial itself and so you would you would have to delay for that reason however we didn't have that information when he's making his procedure requests the day  so second thing is here we didn't say that he wasn't ready to go to trial did he i'm sorry he didn't say he wasn't ready to go to trial most of those cases have to do with somebody on the day of trial saying i want new counsel maybe all of that's right but so you know money he does say you know my this court said we're a defendant invokes the right to go pro se asked delay trial then you can deny it but in actually in this transfer i think he does say if i'm not ready i you know you should give me a delay i think the defendant did say that in the se hearing but the second thing is he's constantly disrupting and interrupting the court he's also for example he said he's calling the court your honor and he apologizes and you know it's i mean to talk to the judge i pages on them so what page are you looking at if i could so i was given the p d f pages as opposed to the actual transcripts are there just in the state court record well well you're looking for it and you know i'll just say the least my own look at the record suggests that he was he may not have been the most polite person in the world but frankly i've seen lawyers with  he largely acquiesce as to what the judge is doing as soon as his request is denied he does become disruptive and rude and you know fails to comply with courtroom decorum but it really seems to me that until that motion is denied he's trying to communicate why it is he wants to go by him self i have can not recall that he says i have to have more time it's going to change the schedule and the judges just keep going back to this idea that he just isn't savvy enough to be able to do this he doesn't know about d n a he's got this crazy theory about the seal and so on but those kinds of things are pretty easy for a court to deal with you can just say i'm not going to entertain any more discussion of that and if he had been representing himself the counterfactual that we don't know anything about it may have gone  so if i could give the the record i had them and then i would respond to your question so it's on so it's dark out of mind as to before this court so within that is the transcript says during the trial but they had to delay the jury so it's a record number fifty eight from the actual state court proceeding so and then in the actual transcript state court transcript page thirty this russian says you're not going to push him on me you're not going to go into your brain and do me like a dog you're not going to do it and not to let it happen so if you're what we have is we're watching preventing the court from proceeding to trial i think the court can legitimately that he's very frustrated that's long after he's been denied it that's long after he's been denied again you're trying to rely on this post canonical behavior as a reason for the denial and he didn't issue he's also explaining as we're going on as if the directions are continuing i think that's what the court of appeals is latching onto and i think that's allowed that the court should be allowed state courts three allowed to look at that and the reason why is because in brock the court there you had a pro se defendant he's engaging in it and lots of misconduct the court says yes fred a says trial misconduct it justifies forfeiture but we're going to look at what's going on pretrial in project as you would have acted at trial and that's a lot and i think the state courts allowed to make the same kind of projection here to my concern is that there are human just seems to reverse the direction of time so i understand the court's concern and i respectfully disagree with that because of brock and certainly if the court if they were to disagree and then the court would just grant the rich and been mentioned before but it's not an argument that anyone has ever made that to he was somehow delaying the trial by waiting so long so i do think that that's forfeited as i think judge hamilton said the trial was actually ultimately delayed for unrelated reasons anyway so it wasn't really the day of trial there is no evidence that allowing mr washington to go pro se would have delayed the trial the judge didn't say and not allowing this because he would need more time to prepare a mr washington and say i need more time to prepare so please delay the trial later he said in passing something like well you know if i wouldn't be if i'm if i'm not ready to do this i would ask that you replace my lawyer with someone else that's sort of an equivocal comment and it was after the denial where brock was allowed to go pro se and then he was disruptive at pretrial hearings brock doesn't at all stand for the proposition that the state needs here which is that the defendant's conduct after is for a right is denied when he's not being allowed to represent himself and he's not about that understandably since his fundamental right was denied that that could be relevant to whether the denial was the right thing to do in the first place and if there are no further questions i would ask that th