zoom it makes today's close as possible to the real stuff with a precinct thank you very much so this morning i'd like to start with the argument that the court allowed my client to proceed pro se despite ends of mental illness and what i want to start with is the common ground we all agree that the court in indiana be edward the supreme court how that a court is permitted to deny pro s representation to a dependent where he suffers from mental illness to the point where he is not competent to represent himself the trial which is a higher level of competency than that required for example in c to stand judge has a primitive duty to ensure a fair trial and to sue a son to jump in if that is required so this is where we differ from those principles that we all agree on my position is that a court has a duty to ensure a fair trial and if we know that mental illness can preclude a fair trial then to ensure it's a square to sophist ill its duty to ensure a fair trial it must be able to inquire as to whether a defendant is competent to represent himself where there is evidence of mental illness that's my exact opposite i mean i think what you're psychiatrist come in and do an evaluation over the span of days or weeks in this case unfortunately yes i think that is what was required here because given the  it wasn't just that though i agree that these people were not experts including the court that is why when there is evidence of mental illness you need to inquire you need to bring in professional health so what's what is the evidence t the said that a long time friend had said that he suffered from some undiagnosed psychological instability then had the defendant's letter the defendant was a prolific letter writer who said that his  subsequent lawyer absent handler had told him you needed a psychiatric exam and absent handler when he responded to that letter to not deny that he ever said that he didn't ask for what he didn't move he didn't need to the only time that this became an issue there's no question he was competent to stand trial nobody is questioning that then and nobody quit and i'm not questioning that now the only issue of constant c became an issue when he moved to go process so the other lawyers some meaningful consideration to the question of mental illness and this wasn't just out of nowhere it wasn't like there wasn't other evidence in the record and as judge sullivan just asked that evidence included those to letters there is evidence at the suppression hearing which occurred in two thousand and fourteen where he was a medical watch for drug abuse he requested long term solitary confinement which the warden testified was not normal he refused to take a chest x ray for tuberculosis which is also not rational he was disciplined for parking again the codefendant so attorney at that hearing said she was very worried because rivera seemed extremely upset he was overwrought and making very serious decisions you still have more after that the government had pretrial motions where they acknowledged his long term drug abuse for her apparel and cocaine and it's common knowledge that heroin addiction especially this one where it goes because it wasn't only yet that wasn't only you know that you have a defendant he requested it's really up to your attorney and it wasn't just you know that he didn't like he disagreed trial strategy or whatever he was absolutely obsessed with this verse attorney he of the emotion are not unusual but these weren't just bouts of the emotion you also have the fact and again there's just so much evidence here he decides he wants to wear his prison clothing to represent himself the jurors that most of these things i have to say are decisions that people get to meet with me whether they represent or not yes but when you put them all together in one case it starts to show a pattern it starts to show that this man is not entirely stable and his letter writing to them you have to have to be entirely stable i mean so that is akin to represent yourself is not stability no but it suggests that he was not mentally competent to represent himself yes he was competent to work with a lawyer consult with a lawyer he absolutely know what proceedings were but he was not competent to represent himself he had  his judgment was completely distorted and the prosecutor will say and i conceded in my brief he is absolutely intelligent he can write he's not necessarily book smarter or you know higher education but he was absolutely intelligent but intelligence doesn't negate mental illness and mental illness in this case he was able to connect the dots even given that you can give a one thousand dots and i don't know how to explain and because i'm not a healthcare professional either he would connect every dot every single dot even if they didn't deserve connecting every single fact every every minutiae was important he had no ability to distinguish one from the other a mental illness it's not a unitary concept it does change over time it can be emotional and it's not just an inability to communicate with the court of the jury and that the supreme court networks actually refused to adopt that standard saying that you had to be unable to communicate coherently so it means it can mean something else and even the score in the nd circuit has said that it could be antisocial personality disorder it depends on what's going on there and that was in this court's decision and nine a core it affects people in different ways and in this case it was it was his judgment he was not competent to be running this trial and then you saw you can see what happened the trial was an absolute disaster and yes i note of the defendants representing themselves often do not do better than that it's not disputed but in this case it didn't serve any purpose he had to fences his inability to take advice even though he had stand by counsel this inability to take advice or listen to that advice made his cross examinations there were to find as cringeworthy painful the court said at a sidebar with them that it was excruciating for the jury so you had nothing here that was that should have encouraged the p t representation it did not affirm his dignity but it was at the heart of pro se representation he did have defenses but with an excruciating performance that alienated the jury there is no way a jury was the issue that my adversaries and who is time on namely whether the district court was required to hold a hearing to determine that rivera was competent to proceed pro se the answer is no the story told by my adversary is a defended his behavior constantly raised red flags of mental illness that were ignored by everyone in fact the instances my adversary points to are not evidence enough they are selective examples devoid of context of why it is generally on wise for defended to proceed and i want to start with the example that my adversary focused on in her reply brief as well as during argument which was the just report statement at appendix one thousand one hundred and seventy one of the record that t a defendant was trying to introduce and put before the jury the fact that statements made by the cooperate are on direct conflicted with statements that he had me to egypt's anything and that were documented in the three of you and he was trying  to get the witness to say either that he didn't remember so that he could refresh recollection or that he never said that so that later in the trial and agent could get on the stand and be questioned about what was said and what was in the three of two and i think that we're owners will agree that this is a concept that sometimes even a very experienced attorney struggle with how to properly refresh recollection how to properly put inconsistent statements before the jury and i think it's really significant because it shows that the counsel who he was listening to and the judge said that that process was sort of excruciating because every time he tried to sort of get the witness who was not being quite a part of to say that either he didn't remember or he hadn't said it the witness or wiggled and then he tried to put the three of two in evidence or to try and get him to look at the three and so again this is sort of very complicated boring even for experienced lawyers not prosecutors and it shows quite clearly that he meets that the standard for representing point out that the witness was all these witnesses were strongly cross examined on whether these incidents actually happened whether she was in fact as young as she was at the time where the relationship was as described and keep in mind for videos there were hundreds of these videos on his would that's not what a mercury i'm saying that these know that these particular video shows her age which was highly highly contested and showed the nature of the relationship between them including statements that  made the this sort of the interactions between them and the videos show her age more than than i think that when you actually see the video first of all let's just to go back talking about mommy to this tears were directing her at various points and it did strongly corroborate sort of the the testimony that she was indoctrinated by him and sort of controlled by him through this relationship which then allowed her to be traffic afterwards and again this is evidence that had been there were multiple witnesses who testified to this but they were also strongly cross examined and we felt it was important to put this evidence into corroborating evidence that that the defendant himself as we now had created he created these videos he was sort of proud of what he was doing and that that comes across on the videos and i think it's important and they were not sort of sure to rise nobody suggested that he should be charged with child pornography even with all of the discussion about those videos w studios to show the personnel why they need to have videos to show the age why couldn't they just show the one without the sex act so if those are the two videos it is why do you just showed two and then why do you show four and it wasn't just showing the refresh the jury's recollection of what was on those videos and obviously they want to the jurors to stare at mr there are while they were going through the transcripts describing disgusting videos and mr there was not proud and not in the record he apologized and said they were disgusting he apologized to the jury there was no pride there so they didn't need to do for videos in fact they didn't need to do two they didn't even need to do one they could done still that ios from one of the videos that the government said showed her age but that's not what they did they went well beyond that and yes they were for snippets they could have they could have done a lot more but just because you could have done more doesn't mean you've already done the damage with the four and those videos were very difficult to watch and they were absolutely prejudicial they had nothing to do with sex trafficking and mrs smith already conceded it wasn't that they were claiming that she was subject to question because she was in a relationship so it goes back to what the government set a trial age for progress and i'm sorry she was in a relationship wit yes but the government is not claiming that those videos were used to show that she was in a relationship and because of the relationship that was coercion the government just admitted that was not the purpose of the videos it was sh the video that the government relied on in the brief one of them where it said she said stock in that video was the one where there was no sex act so that's not coercion and the other one where the videos as my mommy was means to me now she's gotta pay when you watch the video you can see it's meaningless sex talk it was set in a flat on a boys and you can observe the reaction that there was no fear or coercion i'm not saying it wasn't a horrible thing that he was having a relationship with fifteen indication there will be any repercussions if you see her reaction there is no fear yes she's very young mr of there absolutely should not have been in this relationship it's reprehensible not not denying any of that but that's part of the problem with these