representative of the state and i have thought through this case for a long time from stake or through federal court and i think we both agree that if the case is looked at as a severance case i might as well go back west los a couple of things one is this concept pointed out by the district court of the battling constitutional rights which are not equal the forever right and the getting in right him from being represented himself under firaaq and there's nothing like that in this case no evidence of that at all and so i think it's really it's a false straw man to set up to say these are not equal rights in this particular case they w and again this is the unusual circumstance in which the prosecution either intentionally or for other reasons brought these cases starkly there was any evidence they intently did this by intent  that the government could have brought the two counts together and nationally absolutely so that's something something of some right attaches because they brought them separately and then tried to consolidate  i wouldn't phrase it exactly that way well yes it have to be something writing the prevent them from doing what they could have done initially that's right and what is that right that attach ok the right to the catches is that when the first couldn't agree he couldn't object and say hey you're forcing me to choose between public defenders he also couldn't at that point say well wait a second i want to represent myself on one of these and not on the other one but the circumstance that we have and the to play with the system he did it for a legitimate reason and nobody has claimed ever anything else once he was representing himself in the fleming case he has the right to do that and i think we agree that he has a right by  it's in the same court hands but there are two separate cases could they normally be joined yes they could not a problem but because he's exercising these two independent constitutional rights that conflict with each other i want to represent myself in the form of case again no we couldn't because once they're properly joined he has no right to split his representation our whole argument is that the courts have looked at this case from the wrong point they've looked at it from the post jointer situation and looked at the both ways and said well he couldn't get a severance based on what he said and i agree he couldn't but that meant that the jointer was proper without i disagree because he has these two competing rights and but i'm not even sure it matters whether they are exactly co equal in their in their force they are they clearly are in conflict and i think that you know i cited you know prison for sixty five years and four months to life is that i think this is just i mean i think this is just a straight out of a rather getting and this is not so this is a somewhat the same thing done in a different fashion is not another word is are we kind of elevating form over substance here if they could do what my dismissal and refiling my can't they do it by simply done differently and legally then it could i just like i threw away could it have been done that we absolutely i was just looking at the practical consequence in other words asking myself what difference does it make if you get to the same position if the state filed them together either originally or later on or refiling or simply do it after their filed what's what's the difference well actually speaking if one looks at the difference but again i'm trying to look at it from the point of view of what happened the time and you know i don't want to be trite and i don't mind and you know i don't want to be cute but you know in all that and so it's like what does it matter what we're doing along the way i think it does matter what we're doing along the way so i think it matters when that face came up at the time it came up and there's this constitutional conflict that matches what happened these cases were properly and appropriately joined in the state law and in resolving that question as the petitioner also can see there simply is no precedent really in any court much less of the supreme court that precludes the joinder of cases in these circumstances and that that is the extent of the issue presented in this case and so while the defendant or the petitioner can envision alternative scenarios that in his view would validate or vindicate his forever rise differently that is not the standard in a case that comes before the court under the restrictions of the a t p a and in light of the case addressing whether or not this procedure is you know quote unquote fair or appropriate it should make any possible difference the timing of the joining here the issue is whether or not this defendant has a right to preclude the join adopted any kind of argument allowing that or enforcing i should say that position in this case would constitute a new rule in violation of t and whether the court looks at it as a team question or simply as an