is elizabeth pollock and with the federal defenders for the central district of illinois and i'm here representing the defendant appellate cum al khateeb today this is also a case involving the speedy trial act one where the record below is vacant not nearly as developed a the one we just heard in this case i think the first issue needs to be addressed is whether or not i even get to ask this court for anything time since that was the government's thrust of their brief in response to my argument and of course my position on is yes i get to ask you for relief and at the very least the relief that should be granted is a remailer and to the district court so that the government's pointed out lacking findings that those findings can be made and the gist or judge gets to rule on this issue now the government has asserted that mr t v waves his right under the speedy trial act because the right was not asserted through counsel it is true that this case that the circuit has cases in which they state that a defendant who is represented by counsel doesn't necessarily get whatever he wants he doesn't get to file motions and get those motions heard whenever he wants if he has an attorney but this is a different beast that we're looking at  speech for two reasons the first reason is that if a defendant doesn't say anything it is for ever waves there is no plane air review of vailable from this court if it's not asserted in the district court that is not true for any other forfeiture of a right that i am aware of where it's automatically permanently waived that is a huge detriment to the defendant especially in this case where at least in my pinion and as the court can see from my brief i believe there was a in this case the second reason that it shouldn't be considered in this case or in cases involving a speedy trial like that particularly here is because mr t who most district courts i think it's safe to say would find irritating given the number of se filings that he submitted made every effort he could to bring this to the court's attention he simply couldn't convince his trial counsel to file a formal motion but the court was well aware of this issue that's in the record in two particular places where the district court ordered the u s attorney's office to provide status reports on where the heck this guy was because he had been writing saying i'm stuck here i'm stuck here the whole time that he's in transport for months why am i going to get back when i'm going to get my speech trial the district court knew this was happening the court ordered the u s attorney's office to track him down find and report and say were to go why can't we find it now this is not your standard case of waiver when we think of a waiver in this court's context waiver is a voluntary intelligent knowing relinquishment of a right this was certainly not voluntary as indicated by mr co repeated filings he put up a huge fight at least five filings over the course of time three which came after the real violation which was the transport violation where he was gone for a period of months he did everything he could to get this court to rule and nothing happened and so now because his attorney and don't get me wrong i am not alleging ineffective assistance of counsel right now i'm not taking his bite of the apple right now but that being said the court knew that this was happening under the rules so what the court needs to do is craft an exception and say look in cases like this where the remedy is that the defendant it's never reviewable no matter how many times he yells and screams and stands on his head in a district court no matter how many times there was a he said there's a speedy trial like violation no matter if there is one or not he can't get relief and so that can't stand that's not justice and so if this court wants to couch it in terms of well the district court abused its discretion by failing to consider the repeated speedy trial act claims that were made by mr conceived that i think that's probably the best way to do it because like i said the district court knew that there were problems with this defendant's speedy trial slaves because he repeatedly told prosecutor find out where he is person is represented by counsel no not at all only with regards to speedy trial because of the remedy and what happens to a defender if it's not race i'm not saying look that this guy clearly was irritating you filed a lot of stuff a lot of it was groundless  similar way too for example a sovereign citizen who files repeated motions alleging the court has no jurisdiction and for harking back to the rules of like sixteen thirteen or whatever it is that they file there is no reason that a district court should have to consider all of those for of us motions but in the case of speedy this case the district court knew that he was missing in action and he was reading over and over again and he had to get the prosecutor to track him down that's how we know he was stuck for this whole period of time all of which is not excludable time of the speedy trial acts of the district court knew that that was going on but my proposal is that in cases where the speech trial act is alleged to have been violated and if a defendant is screaming his head off and raising the issue but his simply because his attorney wouldn't put it in writing that's not far him from appellate review you may have an interesting says i mean did they read them i mean they have to read them and they come in and then they can some merrily deny everything they want because it's not meet your counsel but the one exception and i don't think it's that burdensome especially now if they're it i suppose interpretating and inarticulate defendant who who's saying this is too slow well that doesn't say speedy trial act so maybe that wouldn't apply and i guess there could be some some problems interpretating approach say filing because there are some establish a new law of the circuit and then tell them to revaluate and remain for a consideration of what should have been considered i stand it's my rebuttal time i'll save my time for about that thank you also clear in the record that the court was sensitive to the timing of the trial throughout the record that there is no question about that the question is whether the offended you by myself or through counsel adequately filed a defense standpoint what the defendant wanted was for the case to be result right if you want to just as he wanted his day in court there's a lot that happened that delayed that a lot from his defense counsel right you can see that the record and this co proceeding but he's never asked right and particularly before the trial of no on the eve of trial the say hey too much time has passed here dismissed my case right because think about this practically what is that do write one it delays it for consideration of all those periods and the judge is going to have to have it briefed you know and have that the defense delineate those periods that should be not excluded the government respond then there's a decision then it gets set for trial then if the defense loop wins right there's a question does it get dismissed or not get dismissed with or without prejudice right if it's there no basis here for sort of government bad faith that would cause a dismissal with prejudice so assuming the defendant would win right on a technical speedy trial a claim on the eve of trial the case is going to get reinvaded he's studying again it's further delayed right so there's a good reason for not filing a motion to dismiss on speedy trial but still at the same time asserting myself my right to a speedy trial i want to smooth as possible that's what happened in this case because there is no actual motion filed and no motion filed that delineates the grounds for the violation and that's what's consequences will the court we should say you can apply thirty one sixty to a one because a direct consequence of the government which would be dismissal right the law is set there to provide an orderly process for the adjudication of a speedy first off i think that trying to infer that a defendant who files demands and request and pleas for a speedy trial didn't call in a motion for speedy trial our motion to dismiss because the speech i like that in first quite a significant bit of legal aqim in on part of the guy who clearly doesn't have any so i don't think that's really an argument that you can take to the bank the other thing is there's a lot of let's consider what if let's pretend you know assume but that those things that this court doesn't do