which he did not under there is no california lodge directly on point what quote yes we're going to go back into the facts with what factual evidence do we have now as to whether or not those expressions the only evidence in the it's also equally clear that there was no incentive for counsel to raise the objection for mr ailes because he had acted in error prior to trial and simply raising the subject at that time would have pointed out his or hers so i think that there was a clear was actually not entered it was included in a pretrial order the local rule requires that you actually submit an order so that it can be filed that with the court expeditiously and make it part of the public record the only way my client determinations in particular regarding my client's testimony as well as his expert testimony dr in doing so he acted as if a jury would have been acting and under that because those rulings i don't believe we can say that no jury no jury did not like the bench trial judgment and he wants a second bite at the procedural out well he should not get a second by that procedural apple on the bench judgment should be affirmed because he waived his right to a jury trial and because he cannot the bench without objection here the same thing happened mr reynolds is an inmate serving under one thousand nine hundred three alleging an eighth amendment violation and he watched his counsel argue vigorously to the to the bench for two and a half days only after it was apparent that he was going to lose that he allegedly try to raise the absence of a jury now the only part of this case the troubles me is the question as to whether or not he knowingly stipulated whether his attorney acted independently then he finds himself in a courtroom he kind of goes along with that but he was never asked ahead of time do you do you consent to trial in front of a district the attorney this is what we have is one contradicted testimony by him and then inference from his behavior and not objecting in front of the district judge but there is a there is no other possible witness out there and that's the lawyer yes your honor i i did not attempt to contact the attorney because i i only wanted to or the defendants only want to focus on the record before the court however and their liberties points which the record could be made that is to say you could have made a record  below this correct you're saying could the attorney have written it jack aeration and submitted it to the court saying that he communicated with his appeal with his client yes that is true that could have happened that it did not happen in this case for a lawyer to waive my client's right to a jury trial with african south client that's kind of a yes or no question i would say that it's prefer a bill that the attorney and the and the client communicate is why i now understand that it's preferable i want to know your position on whether it can be valid for a lawyer to waive cited by mr reynolds and in his opening brief also characterized the jury waivers as a procedural procedural right signed by both attorneys the second part of a local rule any three dish one forty one requires that the stipulation be adopted by the court and the stipulation was adopted by judge  close review of the record specifically mr mr reynolds writings to the court his letters to the court reveal that on february one two thousand and one about a month before trial he wrote a to be set and his march nineteenth two thousand and one that is that i think plays into the other side's hands because their argument is not that he didn't say i don't want to jury trial their argument is i'm willing to waive that provision of the title twenty eight requires that both parties consent to a magistrate judge there's nothing in the record about a consent to the magistrate judge well that's that seems irrelevant to the point because the only point is what is the says in here is motion for a new trial and his notice of appeal that he stipulated he was requesting a jury trial or a bench trial before the magistrate judge and without the consent of the defendants he the procedural apple because he and the bench trial judgment should be affirmed because he waived his right to a jury trial and he cannot insist on having his case tried before a magistrate judge instead of just re point out that the council suggests that white is not distinguishable first off white has been limited to attacks in several cases by the ninth circuit in u s versus california mobile home park management corporation