denied by the trial court percent to twenty eight u s c section one thousand one for at least two important reasons one the magistrate judge here stated on the record that he did not have the authority to grant mr cunningham some motion to appoint counsel which is a legal error and to the exceptional circumstances analysis here is fundamentally different than other cases because this case involving a jury trial first it is clear from the record in this case  trial magistrate judge o'neil stated one congress has not given the courts the money to pay counsel in this context and to the court certainly doesn't have the power to force a lawyer to represent somebody for three inclusion he said these are the only two alternatives and it's clear from these comments at trial the judge a deal to not recognize that he could ask the private bar to volunteer to represent mr cunningham at trial under this court might be contained with we're going to written order that's true and it may be it might have been a different result if he had said nothing but by what he did say he expressed we did not understand the alternatives available to him he said that there are two alternatives he did not recognize that there are other alternatives and from the face of his comments he didn't understand the test secondly the december twelfth two thousand order is merely a cut and paste of magistrate judge snyder's three prior pretrial orders also denying counsel well that's fine and that's a common thing it certainly doesn't show us today that he understood the test under section one thousand nine hundred fifteen and third even if that december twelfth order did have some bearing here it's irrelevant because that order and the three orders  exceptional circumstances the case does not pass the exceptional circumstances test required by the ninth circuit because we get these kind of cases every day but importantly that is not the correct test even if mr if mr cunningham passes the test he passes the test regardless of how many other prisoners pass the test judge snyder misapplied the ninth circuit's exceptional circumstances test and her three pretrial orders magistrate judge o'neil copy that order and therefore also must correct in correctly applied the test and then on the first day of trial judge o'neil expressly stated he didn't have the authority to grant mr cain yes motion which was legal air even if they had applied the exceptional circumstances test hearing from the record it doesn't appear that they actually went to the steps and applied the test but even if they had they abused their discretion by not recognizing that this case presented exceptional circumstances in part that's primarily rest on the fact that this was a jury trial which differentiates this team from several other nice record decision big on those you know based on that you know i just hope that you will follow the law and do the right thing that's basically it that you need an advocate from the jury all that judge and he'll need do to satisfy his duty under section one thousand fifteen is that's fine thank you for your argument we'll hear from the state at this time entirety and in context you will see that mr cunningham received a fair trial and he lost he claims that he should have been appointed counsel and that joe neel by denying request for appointment of counsel denied him a fair trial under the ninth circuit test which is exceptional circumstances test and the court considers both a likelihood of on the merits as well exceptional circumstances that's correct but he'd already understand it and the significance of that i think we probably have to look in context but really to see with the harmless for not don't we just kind of have to don't we have to analyze the exceptional of all of the psychological studies about jury trials tell us primacy is the most important thing in persuading juries that the first things they hear form those impressions particularly when they hear it from the bench from a person who's supposed to be a neutral arbiter are you telling me that this judge could have spent latest in gentlemen here is a general statement about what this case is about it's really not much of a case it's just for your argument reb