mickey may please the court my name is henry lee and i'm here as a court appointed amicus on behalf of anthony laundry i with the courts for mission and like to reserve a few minutes of time for a little before trial mr laun discretion and then improperly concluding that mr largely by reason of his not how your argument is that was exhausted by raising the specter of the sixth amendment on appeal for thirty would you have floor for that if you raise a what he said in his proceed papers that would have alerted the appellate division to his radically and certainly your honor the brief no less than seven times referred to the fact that mr la jihad an attorney felt forced on him and and mr russell was forced on him and said the defendant appellant alleged that the government was indeed the cause of the interference which then prompted the ineffective assistance of counsel it's clear based on  you just read that's right you're out of but he said he wanted to travel pro se but but i thought almost everything that followed or was around that was complaining about the ineffectiveness of his lawyer and he did mention strickland right on him and in citation of support of this argument by mr launch he attached actually his only support in the record for this argument the five page transcript in which the trial court denied his self right to suffer a presentation and unlike other that with his right to suffer representation that his attorney was not competent because he was an overworked public defender and involve this court's decision the right to self representation or the request for soft representation accompanied with it was a complaint that his attorney had not communicated with him and not had conduct and effective defense in an investigation prior to trial so in this instance the appellate division should have been on notice that the factual basis for is the government interference claim was in essence that the state had forced an attorney and in fact this case that the way that mr laundry framed it in his brief is precisely the identical question presented in fred  whether a state may force an attorney on a defendant even when he insists to conduct his own defense and in this court in mccandless had made the statement that citations to specific federal cases wasn't your honor the judge has or had actually referenced in a footnote in his opinion that mr launch you raise the issue that an attorney was when he was allowed to proceed pro se he was not arguments and not found them and exhausted and the reason for that is that the supplemental letters that mr monti submitted to the district court are largely identical to that argument that he made before the appellate division both pro se and  both intended to be construed liberally the argument in the factual foundation of that was essentially that the state had force an attorney on him that caused a source of government interference which violated a federal constitutional right and we had met that there was no citation to read at that point or a specific reference to the constitutional rights of self representation but the government interference was that of his sixth amendment right right to counsel and just as  colloquy was was insufficient that that specific that the argument that the you mean that the colloquy there wasn't adequate protection of his not in those terms in front of that he was not advised of the dangers and disadvantages of self representation mr logic did emphasise the importance that a trial judge award that right i mean i guess what i'm asking i didn't phrase the question very well i apologise is for of self representation to the trial judge and the trial judge denying that right and mr laundries argument was in essence that the government interference the ineffective assistance of counsel that stemmed from this transcript where he had asked to represent himself  now at various points in the state's brief there's an argument that the request was not clear and unequivocal aside from the exhaustion issue but it's clear from this transcript the same colloquy that was cited in his presence a brief that the judge understood what the request was that the request was one for self representation and that counsel had clearly and unequivocally made that request barring that a judge's only constitutional duty at that point is to conduct an inquiry on the record as to whether  ultimately denied the right based on an improper substance of ground namely that mr lancia do not have the technical expertise and could adequately effectively assure himself a fair trial that same issue was identified by this court in boldly cookse case concluded that the state's evidence at trial suffered from two serious flaws first there was a complete absence in the record of a concerted plan or conspiracy to murder the tourney's and second  that the additional evidence doesn't go towards whether mr launch he had the intent and knew of the concerted plan to murder the victims in advance if he knew not of the planned murder or the plan to rob that's that's also sufficient for felony murder but there's no evidence in the record on the same evidence was admitted against both the fens to show that kaminski in fact near of the robbery of vance there's no evidence to directly tied mr laundry with the knowledge and and an murder which you've got felony murder i'm not sure and i'll ask representative for the state where the sentencing differences of memory not be different i don't know at least what it was back then while you're out of with respect quotes in the government's break we've identified at pages eighteen or twenty two of our reply brief various flaws and the jury using that evidence to infer that mr logic didn't have sufficient knowledge or had sufficient knowledge of the felony murder most specifically or most was carrying the briefcase with the money and the briefcase carried nothing about a gun what there isn't is any testimony that mr launch i knew the contents of the briefcase had some role and assisting mr messner in putting together the briefcase or had any not expecting to offer this cocaine deal because berber you guys talk about they're going to be set for life who is getting fifteen thousand dollars for his it twenty's are getting whatever they're getting the difference between what they're getting what they've got to pay back kaminski the underlying decision or foundation the course decision was then and accessories after the fact there was probably sufficient evidence to convict both mr kaminski and mr laundry of that but that they were charged with an affirmative act in planning or committing the murders with the requisite intent to commit the murders and here that evidence after the fact only goes towards whether or not they had helped in disposing the bodies for example or struck in justice and in some other way but don't show prior knowledge of the murders in advance and in coleman this course just a similar issue where the defendant was a long time business associate of the shooter and knew that the shooter was standing charges or trial for a federal narcotics charge and even rented the hotel room in which the victim was found shot this court concluded that the fatality of the evidence was only inferences and that the court cannot sustain a verdict and no rational unreasonable based on a similar a similar analysis that coleman used and the reason is mr kaminski had almost identical evidence presented against him namely that he was at a meeting with the other co defendants prior to the murder  that he sequestered a witness i mean that he received mt of cocaine after the fact but that this court held that the absence of evidence prior to the murders showing a concerted plan to murder the victims and second the inappropriate in strawn from the conduct immediately thereafter meant that the appellate division on recently applied jackson when it found that mr kaminski had had had the requisite intent to commit a murder a felony murder and in this case given that the similarities of the evidence we think that supports a similar result for mr laun in representing the state i'm going to start with the sufficiency plane just to add a little bit to what your honor does which is on top of the eleven thirty meeting on the eighteenth and the fact that we correct but what i'm saying is when he got picked up afterwards and told your cousin that they wanted to see the money first right well he was obviously i mean that's the only logical inference they've learned from a lot of who we know from the we don't know exactly what happened at that point but one of the things i want to bring to the point sentient is that this was in one thousand nine hundred three we didn't have cell phones and text messaging and the things that the conveniences that we had today we had but we have evidence and were and my point being is that  well we know that we know that before he got to the holiday and that he thought that the deal is going to happen you know who more xeno ok then we have after the holiday and he's saying they wanted to see the money the only logical inference and  earlier that day the same day on the on the eighteenth and how do we how do we know that jeffrey testified to that ok shortly thereafter he came back and told said jeffrey it was the the career that that he went over there and that he said they're having trouble getting their money together was the quote anyone but but the movie that was the day that that was the day of the murders no that was a day before the murder because they said it was going to be those on the eighteenth and they said that the on the nineteenth at three o'clock was going to be the next when the deal would happen and then that got pushed back together from three to six o'clock i thought it could push back from three to six because they were having trouble getting the money together that raw city jeffrey testified to that one point but immediately corrected right after that point because they were having a little trouble with the eighteenth and nineteenth  jeffrey said he testified that nick told them the deal been delayed to the nineteenth because the people were ready and they're still getting their money to correct but that doesn't what does that what does it tell us know what i'm saying is that that they weren't that they he wanted to see the money first i'm sorry i said they want to see the light first i've missed them so they want to see the money first and then it to to go a little further even mind you know how i'm not i there was this meeting  and there at the holiday inn together on the eighteenth there is normally that and the bar right and although we don't know who went to what room we don't know which combination of people we don't know we have no idea for all we know mark xeno went to room one o sydney jeffery well then you're proving my point we we have no idea what happened at the holiday inn all we know is a drug deal didn't happen and that more scene oh told his girlfriend that they wanted to see the money first that's all we know right but where did more as you know learn them that i don't know you know we all but we also know that a lot you told him that they're having trouble getting the money together but i want to go a little further if you let me please on the day of the murder we have nicked attorney seen alive a worth and saw these bodies being disposed of in the bags at the end or in the blankets in the sleeping on online just property so there's a things in there because the laundry was there with the bodies and he wasn't because one would expect kaminski during his testimony to say things like i had no idea my friends were going to be killed or see no way crazy there was nothing i could do to stop it i tried to stop it i feared for my own life there were a multiplicity of things that commencement could have said but didn't say to get him off the hook for felony murder he could have said so many things to show that he didn't know this was a robbery and he didn't know this was going to be a murder he said none of those things is right or as i can tell all communes he said was i got out of hand nick didn't suffer and barbara went quick actually commits you didn't even say that on the we told his girlfriend that later that was his girlfriend says his girlfriend said that was just as far as he denied everything he got there and just denied everything so night drug activity he denied the murder he denied everything all right and but the difficulty you have i think it is if we follow kaminski along he has a right not to testify and there's an instruction given to the jury there's no inferences to be drawn from the fact that he exercises constitutional right to testify involved in a conspiracy or anything to that he only said that that's a kaminski and in fact there's numerous evidence with the launch you know even after the fact because just because it's after the fact doesn't mean that it's not relevant to his state of mind at the time of the murder i mean the fact is you need to look at all the evidence and makes it very clear i believe that stevie smith and you know that talk about that and so when you look at the fact that the statements the body leaman you know that  wherever i make reference to making that statement i touched it as part of the  exhaustion goes you know counsel would like us to kind of read into this and talk about liberal concept construction of his arguments but it's it's not clear at all his papers are not clear at all but it's but most of it seems to focus on the time that he anything having to do with being pro se had to do with the time during his initial bill hearings that he was denied being pro se or  representing himself saying no i don't think it's clear and unequivocal at all that that was a request pro se short mr russell so frank i tend to agree with you except the truck or interpreter that was drug court understood what mr long he was saying as a request to represent himself and then he got into a colony which measure against rather is abysmal he but understandable because he was concerned that representing himself was basically going to put his neck in the news even it was a musing that figured it was not definitely he basically says look you're not qualified to represent yourself in all these cases that pops up with a trial judge if they're not really attuned to the threat of requirement their main concern and it's wreckage of their credit is to make sure that the person proceeds in a manner manner that is fair and try to determine whether or not they're in a position based binder education and experience qualified to represent yourself which is not the test well that's that's only one that was one part of it but the other part was yes why yes and what was his reason and he said because counsel's disinterested and not prepared and he also judge first he also made a finding he asked counsel are you prepared for this case and he made a finding also based on his in chambers discussions that he was fully prepared for this i don't see what i believe that goes towards a knowing involuntary waiver and when we're talking about a reasonable application for a this is in one nine hundred eighty eight a lot of the subsequent cases the talk about the specific policy that needs to be done or were decided long after that and there was nothing was where some where the judge allowed him to proceed for say but then immediately changed because they and the courts are correctly so and they found that because he had that short period where he was pro se during jury selection that it was reversible so you know under that background you have this thing where you have a defendant who consistently wanted counsel and beg for counsel and did everything he could to get counseling and his papers subsequently situation where someone is extraordinarily satisfied with the fence also doesn't happen and then there's a reason it's a political context and the person wants to make a political statement that's different but in the normal kind of blood and guts street case where there's not any kind of political innocence not to bricklaying member broader point or a social evil you're always going to get a situation where the person is satisfied with their attorney they're not going to represent themselves the you are only get this situation arising where the person is dissatisfied with their attorney and that's why i judge pies really are inquiry of you is a good one when you when you were talking about the judge trying to find out why he wanted to proceed with say and as i interpret there to parks response to that was what  that's right but it doesn't make a difference you could be the worst reason in the world with the best reason in the world if it's asserted to the trial court and you're the trial court understood it is thing asserted the judge that has a very limited purpose you have to tell the defendant that would then inherently carry with it in every case is a denial of right to proceed pro se and i mean how can we do that you know don't you think  to represent himself and there's not you're not newspapers and i said in the brief and i think it's when you read it the only reason he cited that was because of he was trying to use russell's words that to bolster that he was unprepared he was trying to show that council is unprepared and has in effect your right to say that and i think also the reference to the travel pro se that  deals with his pro se papers that he sent you know and whether they were heard or not that was another issue of his whether the procedure papers which the court did address he had issue with the fact that he just post trial but they did address those  motions i believe all that is what along he was talking about and he says that he at times he even says that mr russell was not his counsel and that you know so it's again it was looking that's morse looking like he's being arguing that he was pro se and really isn't here well he's here exam in case that's another part of the whole thing is that he's actually not here representing the logic of laundry actually refuse that representation or at least didn't acknowledge it so that as an a case he's actually advancing it further issue which sentences run consecutively with thirty years of you know debility for parole the conspiracy to traffic drugs with a twelve year sentence and so given that mr launches been in jail for twenty one years a reversal on the murders and felony murders convictions would entitle and to be set free but i'd like to begin first with the exhaustion question that in front of him bowl those courts held that dissatisfaction with coun a subsequent request for self representation never renders a request ambiguous to go further those two facts dissatisfaction with counsel and a subsequent requests are always factually intertwined i think that's a point that judgement he made that in this instance the brief makes the argument yes that his trial counsel counsel was ineffective before and after his request for self representation but that is precisely the reason and justification for less than seven times the brief refer to the fact that in turn he was forced on him and that he the emphasized the importance that he be permitted to travel pro se and as i point out to us in the first argument that there the he cited three separate times to the five page transcript the colloquy in which the appellate division or sar the trial court has not his right to self representation of a second point is that context matters as it's just pollack had appellate division at the time it considered its this case in one thousand nine hundred two was under the obligation to construe pro se briefs liberally and similarly when we are to look back at his pro se brief he is clear that he raised the necessary factual predicate for a soft representation claim he labeled it as a federal constitutional sixth amendment claim and he attached the five page transcript in support and that should be sufficient to fairly present or put the state court on notice that a federal evidence before the murders showing that mr monti had the intent and that he assisted in an affirmative act to commit the murders and that's precisely why the jury would you have to do that if he knew that rusty and was going to rob them excuse me could have found that he had the intent and committed an affirmative act that would be sufficient but here the evidence admitted against mr laundry goes towards the drug conspiracy and goes towards his actions after the fact as an accessory so the crime  and that's precisely why the jury who heard the evidence in the first instance concluded that the evidence was too speculative to find illicit agreement and found a verdict of not guilty on the conspiracy charge the trial judge then reversed the accomplice accomplice a verdict based on fact that there was insufficient evidence at trial except inferentially their presence at the scene to show that mr launch had the intent to commit the murders him every piece of evidence that the state you were going to pay market price for that who came before the robbery before the sun went down well your honor that inferences drawn together from two piece of evidence nine days apart at trial from two different he say can you direct this to the transcript what was the phraseology there i'm not certain what the phraseology is on that i think he said in a prior context that mr mason or in mr launch he had done something and then was response to the question he had transaction there is no further communication or testimony by mr layman that they knew that the drug trance they planned on selling this at that price for everybody nor is there any evidence to say that they didn't have sufficient funds commiserate the drug transaction others just as as just like you pointed out there's no evidence prior to the crime testimony from any of the three main state witnesses that mr launch he had the intent to rob the determinates or had the knowledge