good morning honors my name is steven becker representing david tucker as this is a consolidated case i will make an effort to complete my argument in ten minutes and leave the remainder of the time for  where as here the trial court based upon a blanket policy commits an error of constitutional magnitude that necessarily corrupts the framework with when within which a trial proceeds the defendant is entitled to a new trial regardless of whether he testifies this court has issued a series of rulings recently striking down blanket policies in patrick walker l and the same result should attach here as i believe that patrick controls in the situation in patrick this court held that the defendant was substantially prejudiced at the time at which the court failed to rule on the eliminate motion the judge in patrick is the same as the judge here it's judge sachs and by failing to exercise discretion at that  the defendant is substantially prejudiced in two ways first of all the substantially prejudiced because he cannot knowingly and intelligently make a decision on whether to testify and secondly his defense counsel is on able to properly formulate the strategy for the trial as such the consequences for the defendant and defense counsel are unquantifiable and indetermin in that kind of a situation one cannot assess the prejudice that enters to a defendant and his counsel because they're on able to make these critical decisions it was very the only distinction between these cases the bills is that in in these cases the court's decision to delay its ruling was the result of a blanket policy rather than a case by case exercise of discretion that's correct in and patrick it was based on a blanket policy as in tucker and in the phillips case in patrick it was not based on a blanket policy but don't both decisions put the defendant in exactly the same  place having to proceed in all ways without knowing whether the prior convictions will be admitted no they don't because when you have a situation where the judge either denies the motion or in philip's where he did exercise discretion and he did throw out one of the prior convictions for purposes of impeachment but then of course he didn't make a ruling on the others the defense earned in a different situation because were for example  you have a situation where the judge denies a motion the defendant as council can clearly still formulate a strategy by how they can proceed they can determine whether the defendant will testify whether the jury will be notified  opening arguments that the defendant will in fact testify whether the defense will anticipatory really disclose the prior convictions to try to take away the sting so to me the difference is a difference between night and day and a difference between certainty and uncertainty whether a defendant gets a ruling pretrial or or he does not and clearly the other difference in addition to a blanket policy that i would point out that in patrick this court clearly unanimously that the error was one of constitutional magnitude as opposed to in philip's where it appears that it was an evidentiary issue and that's why a diff result risk reached so i would say that the two situations are entirely different and where we have a blanket policy as here i think it's incumbent upon this court to establish a bright line rule because otherwise what we have is it is a trial by ambush and so it's really irrelevant in my mind whether we're a judge has a blanket policy whether the defendant testifies or not because in any event this court would not be able to conduct a harmless error or a feel and therefore i think in any kind of a blanket e defendant could make his motion that limited before he does them no because i if i understand your question correctly if he makes this motion and the judge does not rule on then he faces this problem of being unable to declare or constitute a strategy where if he makes the motion and the judge denies it he clearly does have the ability to to make a strategy courses to just have a s  if he he may decide to testify or not but the question for this quarter is where a court the trial court has a blanket policy can you in fact assess harmless error and the answer is no you can't that's because the failure to exercise her discretion substantially prejudice of the defendant at the time of the failure to rule and therefore you can't possibly assess prejudice because you don't know what kind of strategy would have been  because you give them relief because the same results attach the same consequences attach to the failure to exercise discretion in other words and patrick you had it like a policy and you had a defendant who  testified in tucker you had a blanket policy the same judge you had a defendant who did not testify but the consequences to both defendants are exactly the same neither of them could decide knowingly and intelligently whether they would testify and nor could the defense counsel formulate a strategy that's why they are in the exact least same situation and the same result should attach with the promise you just as fitzgerald and i are having is really not with paratroopers rather with phillips and both defendants are being put in exactly the same position in either case both defendants are put in the same position or they're both proceeding in the dirt blanket policy or not they're proceeding  in the dirt and i think what we're trying to grapple with in the difference between forfeiture a new trial simply commit be whether the trial court has a blanket policy of doing what he has the discretion to do anyway he has discretion to do it how could how can two defendants similarly situated who don't testify regardless of whether there's a blanket policy one gets a new trial and one  exercise a blanket policy he did make a ruling on one of the area absolutely and this is getting a little bit circuitous but the point of the matter is that whether or not there is a blanket policy or not there's a decision in both cases not to testify right yes but the nature of the error is different that's why there should be a different result well let's get to the nature there because you talked about the constitutional and error in patrick yes and the court did describe the error as being one of quote unquote constitutional dimension and i think that's what you're talking yes that's correct but the court did not in fact treat the trial courts like in policy as per se reversible or is immune from her most error analysis and the court reversed only after examining what happened at trial and concluding that the admission of the prior convictions in fact prejudiced patrick and a conclusion the court obviously could not have made had patrick elected not to testify so we looked at the facts of the case using the words constitutional dimension or nine but i would disagree because i actually agree with justice burke separate opinion that this court in patrick did not conduct a normal harmless error analysis what this court said is that the defendant and patrick was substantially prejudiced temporarily at the point in time it would at which the trial judge fail to exercise his discretion that goes toward structural air the what i would describe as perfunctory harmless error analysis which this court apparently engaged in based the one who we could not have looked at in examine what defendant were but you didn't need to that's my very point because the error occurred that the prejudice occurred to the defendant at the point in time at which judge sachs failed to exercise his discretion he was already substantially prejudiced and that's what this court ruled you didn't need to engage in a harmless error analysis it was completely unnecessary and that's why the same result should attach here because the defendant's testimony is not necessary for you it and those are well that's questionable because i think the majority did say as a result patrick was substantially prejudiced in its opinion and they did that before they mentioned a harmless error analysis so as i see the morning i'm deborah lovi rests on behalf of warren average and this morning i'd like to address the application of the plain error rule to the trial court's refusal to rule and i think that the plane errol can actually address some of the concerns that i'm hearing from the court during mr becker's argument the planer rule has a real simple three step analysis with the clarity in logic of a math formula first we know from people the walker that went to court abdicates its discretion and refuses to rule that that's air right in the court did a really nice job in the majority and patrick is one of those as the separate opinion setting forth that the defendant's ability to present its defense is impaired from start to finish that a defendant's ability to testify knowingly or to waive his right to testify is impaired when you put those together with the plane air rule the plane or rules very simply says that when a quarter airs in the air affects a substantial right that the plane or a rule applies despite any for in then then the next thing is words that will take this and it is that why should there be a different resolves in a case where we can't really tell whether there's a blanket policy i mean then or i then are you left with you have to prove that this judge heard forty two cases and never rule and any of them before trial and that's really a de facto law how to see or you know where is this going to take us i mean  early should we just bite the bullet and say ok you know i have discretion you have to you have to rule on let me tell you where this will take us the first day of the simple case which is warren average where the court flat out says i have this policy when the court says it has a blanket policy we know there's no dispute of fact about whether his discretion is being exercised or not he's told us he's not exercising any discretion and that place you have a clear air now if the court seems to be perhaps molding it and weighing it like in the phillips case where the court didn't seem to perhaps be exercising some discretion in choosing not to that's an evidentiary air and somebody with the you know the phillips didn't argue plane air and i'm frankly not sure how this court would resolve the plane or air question in a phillips type situation where the court does appear to be exercising discretion i think the results should be the same as it is here but this case gives you a very it's a simple set of cases that we've seen a judge's key and exercise discretion when contemplating whether it's a point here or we here we have a circumstance in which judges are allowed to exercise discretion of really is based on present case law that you have to say i don't have a blanket policy or not have a blanket policy but they can exercise discretion how can issue in which a court actually has discretion to rule on rise to the level of play or well and again that's not this case and the well yes sir to talk about i was i was trying to address where this might lead the court but the walker court or the decision in walker makes this very clear and walker this court says look maybe if the court  weighed the factors and decided that to deny continuance that went to been an abuse of discretion we can think of circumstances where that might not have been abuse of discretion but it's the court's abdication of of discretion totally the court's refusal to rule that makes this a clearer air and that's what you have in the average line of cases and in tucker and all these cases where the courts have just said matter of policy i'm not going to or the courts have demonstrated that they have a policy the next step i'm sure if you grant the relief that that i'm asking is that you will see cases where the core didn't have a clear policy or have to decide whether or not to apply the plane or rule there but you have a very clear situation where the court says i have a policy i'm not going to rule that that's air well clear  clearly since you're late what unclear fashion why in the case where there is a blanket policy and the defendant chooses not to testify this court should rule that there is  would contend that that really supports what mr becker is saying that perhaps patrick needs to be tweaked but you have to play narrow rule and less is court wants to drastically change the plane air rule i think it dictates the result that when the court refuses to rule it's abdicated its discretion we know from patrick that that error is one of the defects the defendant's substantial rights i don't see how the result could come out any other way now if that reads leads to an anomaly  then perhaps that's because there is a structural layer that occurs and that's why it's so important to give some thought to what mr becker is advocating because i think it does the air does happen at the time that the court refuses to rule does that answer your question yes i just concluded by saying that the appellate court here talked about you know it's that the the trial court had absolutely everything it needed to rule here and that's just a simple matter of fairness the court should rule on these assume as soon as possible it's in everybody's interests that the courts rule that the defendants have this information before they testify and there's really no reason for the trial courts not to rule i've racked my brains to think about why the trial court would say i have a policy where i'll never rule and i can't come up with it there doesn't seem to be any counterbalancing interest of the defendants very clear interest they have all the information in front of him to not be ambushed so that he can decide maybe i decision to make where the court correctly exercises its discretion and doesn't allow the test that doesn't allow it into the laws and whatever rules on the matter i would argue that whether it's a because of a blanket policy or whether it's the phillips type situation that the plane or rule should apply i think i've offered you a much simpler case so that this court doesn't have to go there if it doesn't want to but i think in either case you have if the court refuses to rule whether it's because of a blanket policy or because i don't like this particular because i don't feel like ruling today when the court refuses to rule the court's not doing its job and when it doesn't do its job it's prejudicing the defendant because the defendant doesn't have the information he needs in order to decide what defense he wants to present how he wants to question jurors and all the other information that he needs and the plain air rule dictates the result here cases decided to do away ruling on multiple convictions and just isn't phillips these defendants decided not to testify in philips this court found that because the defendant did not testify he forfeited review of the trial court's decision to delay a ruling on three of his convictions and the same forfeiture rule should apply here and it's important to note here why because you see what the defendants here arguing is that forfeiture should not apply in their cases due to the nature of the well the one thing i would point out that is the difference one thing i would point out first your honor is that it does not inhibit the defendant anymore than say the defendant in tompkins or the defendant tompkins had his prior convictions a minute against him and then he later sidewall i decided not to testify because of that before if you're still back i mean that they can make that decision but right at the time of making the decision and no one's ruling there's no you can't make it knowing as well your honor i would say that his right to testify is not inhibited and you can see this first from the fact that patrick testified you can also see it in a similar case of or versus united states for justice rehnquist dealing with the similar situation said there was nothing in this case th case it doesn't logically follow because the worst case scenario for these defendants is that the impeachment evidence comes in and you know these opponents are in a situation where the maybe the impeachment evidence comes in maybe it doesn't they are actually in a better situation than someone who has had their to their motions nine and certainly this defendant's world had no problem testifying and we see patrick testified he was in the exact same situation with the blanket policy and all the things  or they're not going to present a reviewable record on appeal and i would actually point out that this court highlighted in its phillips decision that in the case of people versus whitehead that the defendant in that case filed two motions to bar his  it quoted from whitehead because the trial court in white had said i'm going to allow this evidence in depending on what i hear during the direct examination and more importantly than that i would also point out that that the trial court in white had was presented another motion because the defendant white had did not receive a final ruling on his first two motions the defendant white had done said to the court ok well how about this i move that that you four said that the trial court refused to decide refused to rule on the defendant's third motion which was decide the scope of my cross examination based on my offer proof and i would refuse to rule on that third motion the defendant white had then i was a constitutional lawyer and he said that my sixth amendment right to present evidence was violated by this court's decision but in whitehead this court found that the defendant had forfeited that air because he did not testify and what you're really seeing whitehead is that even beyond the phillips case it provides an independent basis for this court to find that these defendants forfeited any review of their cases oh the trial court's decision to delay a ruling one thing i would like to respond to is that these defendants have tried to characterize what the as a refusal to rule and i do not believe that this is accurate because and it's a it's a minor point it's a semantic point you might say but it's an important point here where they're trying to allege that a refusal to roll an abdication of discretion and a failure to rule in all of these manner of things that what the courts did here was not a refusal to rule the courts in both cases i am going to rule on that motion when the evidence is presented at trial and that's an important point in this case because obviously dilute difference between the way in your rowing and refusing to rule out right but the most important thing is that  clear as possible what i'm saying is these defendants are alleging an abdication of discretion a refusal to exercise discretion i'm saying that that specific point is not accurate because what the trial courts did here was still an exercise of discretion so what the child courts did was to follow the law and in fact at the time and following the law and following discretion that is granted to you by the own white house court does not later become an abdication of discretion just because the trial courts do not have enough to know that the law would eventually change these courts exercise discretion specifically granted to them by the illinois power or and this court and patrick also noted that you know what we ruled on these motions in montgomery but we didn't see anything in montgomery about the timing of them and then this court noted well you know we've never ruled on when these things should be ruled upon and so those cases bowen and other similar cases are the only things as trial courts had to go on and those cases said that the courts had the discretion to do exactly what they did and i want to point out that the the distinctions that these defendants have tried to make of this court's decision in people versus phillips court actually found that an exercise of a blanket policy during volunteer was a valid exercise of discretion so it's impossible to see how something which in some cases is not a are all good here under a blanket policy so it's such a great evil that it could never be forfeit and obviously i've already addressed their second distinction of the phillips case which is in philip's they say there was an exercise of discretion in their case that they say refusal but that is not accurate where the courts surmise discretion as granted by the appellate court and third they they assert that there's constitutional error in their cases but not in philips and i would just suggest that well that entire argument is based on their reading of patrick and  finding of constitutional lawyer now as your honor pointed out there is one point where this court says the errors of a constitutional magnitude and that statement is there but again the explicit holdings in hatch are all state that there dealt with a refusal to exercise discretion and it constitutional are based on that and based on that this court found that the defendant forfeited those errors because he did not test so your honors for these reasons and based on th just briefly runners on my colleague on the other side says that there are cases apply i would say he mentioned whitehead and older every one of the cases cited by the state all have to do with situations in which there was in fact a ruling entered on the motion if you look at whitehead tompkins loose and older in every one of those situations we have a case where the judge in fact entered a ruling on the motion therefore they're all distinguishable the state has failed to cite a single instance in which as in our case and as in patrick there was a failure to exercise discretion out of justice thomas had asked my colleague earlier about why should the same result attach here where in patrick the defendant testified and for example in my client's case he did not the reason the same result attaches is that the prejudice is exactly the same ah because when the judge fails to exercise discretion at that critical moment both of the defendants whether they testify or not are substantially prejudiced at that point in time they are unable to make a knowing and intelligent with the fact that a trial judge can when faced with a motion and women e requesting that prior convictions be kept out you have no problem with the fact that a judge at bed point in time and say i'm not going to rule on that until you testify yes as you said patrick if he's puts his reasons on the record so that the court can play her job right that's great we are not dealing with that issue at all correct o the second thing with respect to the whole patrick case when went to trial judge or or really rather the phillips case one went to trial judge exercises his discretion in that regard and and says exactly what i just said that you know i'm not going to decide until you have testified that person doesn't know the outcome of their right until after he the defendant chooses to testify  write he doesn't know the outcome and isn't that the same exact when you're saying you're in the same position for the patrick to found it because it's a blanket policy aren't is it your client in the same position rather to philip because at the point the by the blanket policy is mr defendant is that i will not rule until after you're toast by the way i have a blanket policy other judge i'm going to exercise my discretion and not determine that issue until after you testified is it your client and in the case of a blanket policy in the clinic in the client in the case of not a blanket policy faced with exactly leave the same decision they may be faced with a similar decision but the nature of the error is different because what i want to stay with the decision are they faced with the same decision no there not because in the one case where the judge says that he may have reasons later to make a decision based on the testimony it changes it into an evidentiary ruling where if the good judge has a blanket policy it's a question of constitutional ninety two and so it entirely changes the nature of how a court would review  faced with the same decision based on the other no blanket policy sorry harmless error analysis that's correct because in the latter situation it's an evidentiary ruling and so the court would need the defendant's testimony to conduct a harmless  analysis where in the former situation where the judge outright refuses based on a blanket policy the defendant is substantially prejudiced at that point in time and so therefore the court does not need the testimony as math facts even impact this court said that the defendant's testimony was not necessarily necessary for their harmless error review because there was some additional evidence in the record so that was the distinction i would make is that one is an evidentiary ruling and thus harmless never exercised his discretion he doesn't exercise its discretion but he said i'm going to wait until i hear testimony well no because in that city the first situation was one where he refused to exercise his discussion based on a blanket policy both book you would not  doubt you would not contest that in both situations the same thing occurs forget the decision for me the truck very judge is not going to rule until it either he hears the defendant testify he's not going to rule whether it's a blanket policy or not or discretion he's not going to rule but he's not the rule but the nature of the errors entirely different because the one is an area constant from your interfere in your constitutional argument what i'm talking about is how is one evidentiary and not the other evidence or because it in one where the judge is he is waiting to make a ruling he has a basis for doing that so it becomes a devon and share ruling where like in this case the judge refuses based on a blanket policy there's absolutely no exercise of discretion whatsoever and it's this court is unanimously held it's an error of constitutional magnitude so it entirely changes the basis on which this court should review the area and so on that basis thank you for listening i ask that you reverse a quick stab at that question if i may there's an example i put in my reply brief of two defendants that both want to exercise their right to counsel of choice they both have their motions to change attorneys tonight at the exact same point in the trial ones is denied because the court exercise its discretion and finds that there's a conflict it can't be waived the others is the night for a blanket policy perhaps because the attorney the court never except the pro hockey chain motions or maybe something is outrageous is the court doesn't want to see a woman lawyer in there the real harm that the defendants may both suffer is the same in the trial aspect in that they're both denied their right to counsel treats at the same moment but i think we can all agree that the  difference the type of error makes a significant difference that we're in one instance where the court has exercised proper discretion we have you review that produces discretion if the court exercised it practically there's not a problem in the other where the court has this blanket policy of refusing to rule because of some other factor the error that occurs there is different and so even if the harm might be the same that they didn't get their councils of choice i think the nature of the error dictates well that would be part of it sure but part of it also is that you have it and that you can you can say that the defendant you can apply the plane errol which is one of my arguments as well which is you have a an error that occurred it affects a substantial right in that case the right to counsel of choice so you don't need to worry about forfeiture because you can apply the plain air rule but also i would i would say that you know when you when you do have this abdication of discretion there then you don't have to resolve case it's set forth very nicely in patrick the did defendants ability to defend himself the defendant's ability to waive his right to testify or knowingly exercise his right to testify those are both substantial right i think they're set forth very clearly in patrick in your example is there is there a case you can point us to as to this right to counsel example were discretion was used in one there was a blanket policy to not allow counsel and was harmless error applied in that case in one instance and not the other or does is there where the analogy breaks down it's a it's a it's a hypothetical but there are certainly many cases that talk about a right to counsel substantial right cases to talk about a right to counsel i'm talking about the cases the cases that visa v one would allow i mean to bring that example before the court i think you have to show were in one case term was there would be applied why the result why the result that we're asking for here should prevail thank you