obviously if there's a pending question you can go ahead and briefly answer that question without further permission but we'll hear first from miss hartill thank you good morning your honor my name is lynn heart feel cited that was three years prior to the a d p a and i think you acknowledge in your opening brief that there's no supreme court precedent on whether or not the right to counsel th certainly fundamental can be forfeited through conduct through dilatory or through poor conduct from the defendant is accurate i wouldn't agree with that it depends on how you define forfeiture and that's one of the problems  find forfeiture very differently i would say that if a defendant if there is evidence that attendant knew he was going to lose his right to counsel voluntarily engaged in conduct that would lead to the loss of counsel and did so judge can't take away counsel based on as a sanction and we don't have that but we also don't have clearly stablish federal law saying that the judge can't take away counsel because the public defender's up and started money we don't have clearly  law saying that the judge can't say well you've had two years of law school so therefore you don't need counsel or this case is very simple you don't need counsel so there's a lot of different areas where we don't have the supreme court thing you can't do that but what we do have is a clear rule decision all these decisions seem to so a is i read them there that there is no supreme court precedent suggesting that a warning is necessary to forfeit the right to counsel well that respectfully i would disagree with the analysis in those cases i would agree but the results if i had been on the court i probably would written a concurring opinion because in all of those cases you had knowledge all injury conduct and intelligent decision so that's the problem with those cases it's not the results it's the analysis there is clearly established supreme court law that says you can and a defendant can forego counsel through knowing voluntary knowledge intelligent choice and that doesn't have to be explicit and so all of those cases can be fit within that framework it's just that with the changes in terminology i think the courts got it wrong in their analysis frankly  but looking at the cases that the that are cited by the court we have a bunch of cases involving failure to hire counsel all of those can be and within that framework these are people who are told you must get counsel by a certain date they don't get counsel by that date and then they have to go to trial not surprisingly by themselves we have these tax protester cases in people who they will fail to accept a coin townsell and that's the same thing the court is giving them a choice saying look you've got to take this lawyer or else you're on your own and that's going to that can be set within the exception to the rule of the right to counsel caruthers says the same way we have the court repeatedly saying to the defendant you need to shape up you need to stop threatening your lawyer or else you're going to be going pro se and in cases where we have we have defendants who are physically assaulting appointed counsel we can infer that they knew what was going to be the natural and probable result ok when you say caruthers are you talking about the tennessee supreme court's ok because there are six circuits i thought said exactly the opposite i thought the sixth circuit said that on direct appeal they rule we can have a clearly stated exception but if the judge goes somewhere outside of that we're just going to say we can't we can't consider this case under twenty two to thirty one and that's where i think the analysis is incorrect because in caruthers you could in the end on the eve of trial you know having this conflict and fire them and then you go five months before mr shiner and you're representing yourself pro se and then you finally get a lawyer and then you do it again it has to be if the judge is the manipulating the process and so why can't one reasonably infer that mr religion knew very well that then once he consented once he said mr sh in that situation in the spring colors to be printed now made that explicit would have been to say ok hold on this really what do you want to do if you fire mr scheidler and really would have said well i want to continue to get another lawyer and at that point the court  i'm not granting any more continuances so here's your choice you either go pro se on eleven days from now or you stick with mr scheidler and work out your differences and that would've been perfectly fine but that's not what the court did and if we look at the critical  and then to make matters worse the court goes on to say go ahead hire new counsel no problem you hire new counsel i'll consider any motions that a new lawyer will file so a reasonable person in real institution would not have known that he was going to well  and then later they say this behavior supports the conclusion that defendant who was highly intelligent was nipped elating legal system with full awareness of the consequences of what he was doing why isn't it implying waiver and wise in the end that's exactly what the colorado make a finding though otherwise and that is not how they knew the the evidence was and i think then regardless of what words the trial court used with this this defendant knew exactly what he was doing i think then we get into the two because all withdraw that he was not going to get counsel the evidence is to the contrary because the court told him when czeisler entered that that he would he had to grant a continuance the court never said to him when scheidler was withdrawing never said anything about this is your last counsel in fact said go ahead and hire new counsel so there is nothing in the record that would support a finding that a reasonable person freeland's there's anything in the you know i think no case all that requires that for an implied waiver that because if you had known of course he wouldn't if he wouldn't have fired his attorney and he would have been saying can i go hire new counsel in fact i've been contacting your counsel so the evidence is actually to the time jerry said he knew that he was going to lose his right counsel and then even looking at what the court says we can't even conclude that the court meant to convey that because the court told him go ahead you counsel i'll consider any motions that new council will file so i would respectfully disagree with that i looks like i only have thirty more seconds but if i can reserve that time for  must have known about the conflict earlier and the judge let him which drool but would not allow new counsel to enter an appearance unless the guy would be ready to go to trial right instantaneously ye mr siler i don't know when the when the conflict first arose certainly here he appeared in court ten days and days before trial maybe the conflict had occurred a week before that or something and he had time to speak with an attorney to say i didn't go forward with this case i don't know  want to know what do you think the color the colorado court of appeals were discussing when they try to mention that this pattern of behavior indicates very clearly that he was that he thought undertook this behavior with full awareness of the consequences of what he was i think it can be read like you're saying but because i felt like there was a little bit of uncertainty there i didn't want to make the point and then have to take it back later in the briefs and say well you know they might have meant as well but whatever even if they meant only that he knew the consequences were so i guess in response to a couple of things that were mentioned by opposing counsel the court of appeals the sixth circuit in the second circuit in carruthers and gilchrist did not just brought their hands and say well there's no supreme court case on point therefore we can't find an unreasonable application in fact they said the opposite they said we can't find a contrary to supreme court case certainly because there's no supreme court case on forfeiture of the right to counsel however some cases it's not just told you've got to get a lawyer by max trial date and he shows up and again has no good excuse this is the same thing he showed up with no good excuse for another continuance in the judge said i told you i'm sorry we're going to trial  scheduled what about your opposing counsel's argument that when the judge comes to that conclusion he's doing so without hearing from mr riehl he's he's that the court did give him a chance to explain his side of the story and it takes up a few pages of the state transcripts but he did give his side of the story on why you should ask those lawyers had withdrawn he didn't discuss why he went pro se for five months i credit with the attorneys have told you not your version that you just gave me and i'll just respond to one other thing and that's just with respect to the idea that there are no cases that have ever approved for lack of a warning or or withdrawal of counsel our best knowledge is that this incident happened in october her and her for and then the jury instruction allows a finding of guilt any time over a month and a half why there wasn't a lack of notice that defend it was going to be confronted with a month and a half that they had to account for particularly when the defendant is defending based on an alibi it's much different to have an alibi for two days as opposed to a month and a half and you can take a pass i just don't remember i know i've addressed the issue in the district court pleadings and i think that's part of the a question that's unreasonable the second thing i want to point to is there's this repeated repeated allegation that he's getting a lot of continuances when you look at the continuum since the first setting was december six zero five that was