in jail clothing the justification for his shackling initially was here's what he calls his neurotic episode i think that's a fair characterization of the record that  he explained that he objected to the change and i quote him at thirteen hundred of the reporters transcript this is actually the record forty i'm not a slave that's not that's why i'm in these chains i can't come i can't comply with you  the jury didn't see him because he stayed seated but in the argument the motion for new trial i think he has some statements in there where he says that it was obvious to the jurors between his prison guard and the you did that he was i don't know that he used the word chain or shackled but when i read it it sounds like he was saying that it was obvious to him that the jury's reaction to him that they knew he was chained i don't think the records terribly clear as far as i  the circumstances in this case that mr pickett is repeatedly asking for advisory council is explains during the motion for new trial and i think it's more clearly explained in the reporter's transcript portion of it that part of the problem that he is having is his access to the law library is very restrictive he's not getting the two hours that they anticipated a week he's getting at most i think he's complained forty five minutes and he is going to be repeated requests for advisory council for a variety of reviews in any issues of that nature that previous judges had ruled on and she explicitly said as to advisory council that i'm not going to revisit that because it was because it was already dealt with i'm not going to act as a court of appeals so that's not her job her job is the same ranking as the other trial just so she was going to visit revisit and that's repeated often enough that i think mr pickett had a reasonable understanding that there was no point to repeating it he complained about it initially and he was stuck i think if you also look at the problems that existed with the complaints complaints about his behavior i have a summer question with respect to the clothing i can just record as a third term now show any when mr pickett is saying i'm sitting here and they know that i'm in custody they know that i'm this less than human person that he's merely humiliated by his it's affected his ability to concentrate to communicate when he's explaining all of those emotional reactions on him and how he's been perceived by the jury never once says that it wasn't something that a lay person would perceive as being gentle darkie thoughts about in terms of being in jail clothing if you also look at the earlier discussion regarding the expert witness the serology he mentions that jumping around a little bit i apologize he mentions that during the initial complain about being shackled that that's one of the problems that he investigators not doing his work and then in the in the judge says i'm going through an inquiry as to that so it sounds from the record that that she contacted the the investigator he wasn't available that morning during that morning session and that there would be his investigator not only did he not do the work as far as the two witnesses he wanted the investigator refused to go out of the property storage area and get his closed so once again there is there isn't a evidence in the record that mr is something that everyone would recognize as jail quote if there's any dispute about i think this is one aspect of the case that rather than being affirmed would need to go back to district court for factual development and one of the alternative remedies i back and you investigate and take a look at contact the jurors do they recall if you jury remembering somebody shackled even though it's been a number of years tend to be a vivid thing if if they actually did recognize that the person was shackled that's that's not my experience if there's some aspect of that factual development that needs to be exhausted you know we have to go through the proper procedures but i don't think on the state of the record that it's something you can deny him and maintain his life sentence for given the interim relationship between said it did him and his ability to communicate if you look at the friday hearing again i repeat myself a bit it's very clear to me that the main reason that mr pickett wanted to represent himself was because his perception of his ability to communicate with their jury was his public defender that he viewed this trial largely in racial terms because he was an african american male the victim was white the complaining witness as far as the prior bad acts was white and everybody else in the courtroom were white i don't know about the jurors but that it was important for him to be able to stand as a man and explain his situation putting him in chains prevented him from being able to stand up and he even said that in one point when they were asking if he wanted to make u s opening statement that he didn't have the will to have them in his soul so damaged at that point that he would rather just behind the chair and communicate so he has explained i think very clearly that the combination of events but particularly  shackling clothing discombobulated his psyche things such that he was unable to communicate to clearly establish law and order for this court to grant relief first some overriding common sense to our arguments and our position still remains that the second trial but that really is a relevant to the current didn't even know that he could and that specifically on pages twenty six fifty three and fifty four so it's it's contrary to the position that the public defender is now taking that it was a continuous injection when the this regard and second he was specifically warned of those dangers of representation and that he may not know how to make the proper objections it's unfortunate but that's the choice that he himself decided to make and as i get into the question on advisory council i'll out that multiple times petitioner was specifically instructed that he could ask for a lead counsel at any time and while he requested the advisory council on a number of times well he did so he did that on the first day of trial when it was too late for that to happen and he didn't make the requisite showing so that would be my response to that going to him never objects to objecting to the clothing and shackling it's our position that he didn't in first instance and we're talking at the trial and this is when the cat and the judge himself brought up the discussion of clothing and that the judge initiated the conversation and asked him what he meant or what he preferred to do regarding the clothing and he indicated that it was his quote preference to be in civilian clothing that's our position that a preference is not an objection furthermore the judge at that second trial made every effort to comply with that preference he asked the bailiff to look into it seems like there were other clothes that might be available and then after that the there was no further discussion you recall at the very end of the third trial the motion for the new trial that it was the defendant he being that he remain in his clothes and that's that that's a twenty six forty eight and also petitioner mentioned that he didn't have clean clothes which may have been another reason person's decision not to discuss that but in any event there was not an objection at that second trial there was not any mention of that whatsoever until the third trial in fact it was at the end of the third trial the motion for the new hearing when the judge expressed some surprise that the defendant even was was mentioning at that time identifiable we've got a description of a green shirt and jeans there's not any anything any indication that there were markings on the clothing whatsoever the petitioner has at no time made any such calling in fact in responding in the reply brief in responding to the cases that mention how the petitioners burning to show that the clothing was identifiable they just mentioned that those cases were interesting and they don't go on to offer any support that the clothing w furthermore it's not a violation of u s supreme court precedent in any event any other questions regarding the clothing shackling was it was just mentioned in both of those cases they talked about binding in gagging and different methods to deal with different people who are attending the courtroom and being destructive  illinois the alan and i still about the clothing but in any event there is no supreme court case directly addressing stack when so we cannot say that there is any violation of clearly established law regarding mr issue and the supreme court precedent we do have some ninth circuit precedent that is more detailed an effort to get the defendant a fair trial in any event none of the circumstances of this case are violated by the ninth circuit precedent so what i'm saying here is we're we're safe under it and under either method and the supreme court precedent we're not violating that by his term in the same thing ender the ninth circuit  court talked about how it's important for us to look and give the trial court discretion and grant them deference that shackling is appropriate in situations where the person is disruptive and they talk about different situations  where that is appropriate and to talk about some of the specific facts again here like with the clothing the petitioner did not object he did not object at the beginning of the second trial when this tackles were first put on him and he did not object see that there was no objection and again like i mentioned earlier petitioners comment that he didn't know that he could object undercuts the petitioner counsel's argument that he did object in that case it's also mentioned how they're not required to object before each trial but what they're trying to do is shift the burden to the people here and under john's this court has said that for a new trial court is given an opportunity to stand and move around and address the jurors he chose not to do that however and he mentions later the reason that he did not do that was because of fear on twenty six fifty two his being  i would also suggest that the actions of the second trial justified his shackling unlike this mcclintock indicated he said that he was going to quote act like a negro he told the guards they were going to have to fight  standing in the jury with that same thing have applied i don't understand your point i think my point is that the judge indicated that she was going to allow petitioner if he it's my understanding from reading the record that it would have been shackled because she indicated that he would be able to move around in address the jury and she also in that same conversation talked about how the jury didn't see the shackles and how they were hidden inquired as to whether they were sixteen and on page twenty six forty seven the defendant specifically and knowledge is that the jury did not see him coming in and out of the twenty six forty nine fifty and then twenty six fifty nine she talks about how the jury did not see the chapel at that time and there was no evidence that they are shackled and stationary made no comments he was shackled because he remains the entire time that's not really the question the question is whether it was an unreasonable application of the supreme court precedent and it's our position that they did that it was not i can't say that they did specifically injured by the fact that the jury me have seen him shackled and the court itself mentioned that there's no difference between the second and the third trial he was in the same clothing and he was shackled in both the second and third trial yet he received a mistrial on the third count in the second trial and actually gets the verdict on the third so to say that these were the cause you can't make that sort of argument because he needs to show that he received some sort of burden to distinguish the any further questions about shack one thirteen so when he requested an advisory council the june seventh hearing before the second trial he was actually given advisory council for the limited purpose of the fifteen thirty eight point five motion even though the court later tonight has other requests for advisory council for research and as we indicated in our briefing there is no constitutional right for advisory council also as i noted on june twenty fifth in between  are right before the second trial the judge to order the library to give me more access to research materials in the third trial the beginning of the because of the belated motion and the fact that he did not establish justification or reasoning for advisory council so we've got those requests in one other additional thing is i in my grief thing i indicated that there were no requests made from the second trial to the third trial but there is one note from the prosecutor that states and this is on r t twenty fifteen where the prosecutor ask for advice re counsel in between the second and third trial so that's different from what i stand was to my briefing so i want to point that out to this court but at the same time he did not bring justification in the court did not find he was justified in asking for advice or counsel granted him more time to research in the library and they also informed him that if he wanted in attorney he could get an attorney at that time are you suggesting that that point he had about as much experience so must the court has any further questions that people will jury so i can't say that there was prejudicial effect from that but the two reasons the judge gave for doing it was because of mr pickett's declarations in the solving cell that he was going to act out and that he could the judge could you know there are certain to spot the obligations that trial judges have and we have a for tomorrow you know let me come back and talk to you tomorrow but i point to that because there are certain obligations that trial judge pass regardless of who's in front of them regardless of who's advocating on behalf of the defendant that they need to make sure that fundamental fairness is being honored in the court and i submit that if you look at the timeline in the reasons that were first day of trial it may have been at one point on the first day of trial or even two points i think might have been made both in the beginning and both the second and third trials but it was repeated second trial resulted in a hung jury i think that if you look at allen versus illinois