amendment right to counsel simply because he did not consent to the law students participation at his trial in violation of supreme court rule seven eleven in so doing the court in correctly held that the rule violation itself was a structural defect which is automatically reversible and not subject to a harmless error analysis or showing a prejudice the appellate court essentially held that any participation at a criminal trial by a law student is tantamount to that defending proceeding pro se because it operates as an absolute complete denial of counsel however where a defendant is consistently represented by counsel by licensed licensed counsel throughout the proceedings as denzel w was  set forth in united states versus chronic which is the only appropriate analytical framework for finding a complete denial of counsel bike he queening consent under rule sudden eleven with a waiver of counsel the appellate court and consent under rule seven eleven that portion of the rule is a state procedural prescription it's not a constitutional right because that part of seven eleven is not grounded in the constitution because it does not involve due process it's a violation cannot be a structural defect in this non title the defendant to automatic reversal this court has recognized in the u s supreme court has recently recognized the vast distinction between rule violations on one hand and constitutional violations on the other in illinois versus rivera the united states supreme court reiterated the the expression that errors of state law do not automatically become violations of due process and in this case supreme court rule seven eleven like the supreme court rule that was implicated in rivera which was rule four thirty four regarding peremptory challenges is also like four thirty four as a priest state procedural prescription so it's violation alone cannot be treated tantamount to a violation of the constitution in glasper this court recently stated that one of the harmless error doctrine applies to violation of supreme court rules and in it's important to note that it hasn't last for this court noted that even where the supreme court rule arguably is rooted in the constitution itself it still doesn't entitle a defendant to automatic reversal when the when the rule is violated to the extent that rule seven eleven can also be viewed as being rooted in the constitution although the people don't concede that although it does speak to the defendant's right to counsel and in terms of  sudden levels to being supervised the rule itself is not rooted in the constitution but even if it were the violation of the consent portion of rule seven eleven does not violate and did not violate either the minor spine or the defendant's constitutional right to equated the issue of consent with the al right waiver of counsel however that the two issues are completely different and we use the language in our brief that is a non sequitur to say that a defendant didn't consent to the assistance of law student at his trial cannot be equated with his absolute complete waiver of counsel all together one is a procedural mechanism that allows a law student to participate at trial and to assist the licensed attorney under the supervision of that attorney however the waiver of counsel itself is the defendant's method of going pro se that is without an attorney altogether that doesn't even approach the same his right to an attorney it has to be made knowingly in voluntarily it has to be made intelligently the supreme court rule for one in illinois lays out those requirements and it stipulates that a defendant has to be made aware of the charges pending against him what the minimum and maximum sentences are and that he actually has the right to counsel if you so chooses and don't and only after all those requirements are met only then can a defendant actually waive his right to counsel and in this case that was we would suggest is inappropriate to create that with the simple absence of consent to have a law student present and participating in a criminal trial appellate court also described this as a structural defect so in effect because they found that the lack of consent was tantamount to a waiver of counsel there and an absence of counsel for that matter they treated as a structural well i think the record in both cases supports there are certain parts of the record that show that the public defender was actually intervening where necessary so i guess if you're writers asking whether or not it is  evidence of active literally active supervision where the public defender is helping or telling the student want to ask there are some examples of that in the chemist smith there is no nor no examples of any intervention however i i raise that to make the point that there is no evidence that any intervention was necessary so i think where the record is maybe silent on a public defender not actually participating and asking the questions or telling th the the law student does satisfy the constitutional right to counsel a provided that their supervised in this case as we stated that there is there's evidence that the students in both cases were supervised throughout all of the proceedings the this of course since strickland was in since trot chronics excuse me course they were decided on the same day the courts that have throughout the country honed that even even more and bella versus coroner they said there's only three situations where you get a chronic violation that's when there's a complete denial of counsel one number to one the attorney entirely fails to subject  the state's case to adversarial testing or three were even competent counsel would be would be unable to provide assistance of counsel an attorney that's forced a trial within a matter of minutes or the next day neither of those situations is remotely remotely applicable to this case so therefore chronic doesn't apply in strickland has to apply i think the last is yes or no and i don't think that would there's the analysis would be the same because the the the lack of consent does not affect whether or not the difference in the representation of the defendant in this in either case had there had been consent on the record written or verbal or otherwise the representation is still the same the defendant is still represented by a licensed attorney who is supervising a certified law student they determine that this is not counsel because of the lack of consent but the overwhelming consensus of other states that have addressed this issue have come down nearly uniformly to say that when a law student is supervised then they become they are they satisfy the counsel under the sixth and then the lack of consent doesn't control the determination as to whether or not stricklin applies it's that it's the presence or lack of supervision so you would just have  well i guess in the way we phrased it is harmless error analysis or a showing of prejudice and we maybe it's a distinction without a difference but i think in reaching the errors if any this court should apply strickland so i guess it's strictly is the analytical approach as it is for addressing any claims of district deficient performance by an attorney the the reviewing court goes through to have the one problem to me and that is to situations where a law student is adequately supervise they are licensed by the state of illinois these lawsuits they're certified and there's the i guess i'd like to point out that there's no other facet of rule seven eleven active supervision and it's because i'm quoting the language of seven eleven that the the the attorney herself should be responsible for the conduct of the proceedings so that's actually in the rule itself so where the attorney in this case the assistant public defender is actively supervising as long as she is responsible for the conduct of the proceedings and there's evidence that she is supervising and the defendant six and a rights are honored completely the other states that have have addressed this have have consistently held that the supervision component must control it doesn't make sense that the lack of consent alone operates as an  absolute denial of counsel this court although it created a rule that includes the requirement of consent didn't have to under the constitution by doing that this court didn't create a constitutional right to consent or not consent to the presence of or participation of a law student at trial this court deemed that it is important and of course we acknowledge that the supreme court rules are to be inforced and obeyed however to to reverse it doesn't make sense to reverse simply by virtue of the fact that the rule has been violated there must be more there must be a showing that the defendant has the constitutional rights of have been deprived in some way and that the course said that as recently as glas needs to be a case by case basis i think the issue in both of these cases is i think is functionally identical there is no consent in either case the representation or the participation last in occurred at a critical stage so whether it pretrial motion to suppress or trial itself to both critical stages so i think it doesn't necessarily have to be a case by case basis because i don't know that that would then wouldn't if it's not a case by case basis we're now are asked to supervising he is not a bigot and in those situations your honor absolutely that's and that is a denial counsel because this is a a law student who is not supervised and are getting back to a case by case oh well well i guess i don't i don't think so i mean in the sense that simply because this court would be applying strickland to analyze whether or not a defendant received a fair trial would not necessarily be a case by case basis this court as you know routinely applies stricklin analysis in reviewing attorneys kind of deficient performance and prejudice so stricklin is always in that sense stricklin itself when it's applied is always a case by case basis but we're asking in this case i think it's appropriate that think it's necessary to delineate in that well i think right and i think that as i said by by applying the strickland that is the harmlessness analysis and that's what we're asking for so i see that my notified of the student representation that's an additional violation we're claiming here the rules very clear and easy to follow and yet it was flagrantly violated in this case we're asking that a remedy is required in order to protect the right to counsel and  explained in maine the moulton that the right to counsel is fundamental and of paramount importance because it exists to protect all of the fundamental rights and overlooking the lack of consent in this case with this defeat the rules primary purpose that the not necessarily i your honor we can see that the public defender was certainly in court the entire time however for those portions conducted by the law students mr smith's active counsel and advocate was surely a law student actually coun l we don't know exactly what might have happened you know what sort of circumstance could have occurred that would have required supervision but we don't see counsel stepping in and any points actually step in and be licensed counsel advocate was a law student you consent requirement exists independently of the supervision of firemen and that's their requirement that's biochar so you're saying right right not exactly brother will but our position supreme court rule the right to certain questions during fortier seven eleven however is clearly rooted in the right to counsel and that's a more serious violation mr smith never had his opportunity to insist that actual coun represent him at all critical stages in addition we don't know if the harm he really can't be measured which is inappropriate in the context of harmless error we don't know what actual counsel might have done at the suppression hearing had it been representing mr smith's interests i've lost using trick when a workable tool for assessing the performance of that attorneys in our position absolutely not or on strickland applies to actual counsel that's why there was a presumption of competence applied in that case and in other cases interpretation of the law students he's never had his competence certified in any way by passing the bar or even taking the character and fitness examination in addition i would convert them to sort of there is a certification reversed reversed the defendant did not sign the consent form the student participated in the trial by performing a ministerial acts such as getting a certified copy a conviction and it didn't happen would say no except with perhaps a de minimus exception but that wouldn't be appropriate here because we're talking about representation at a critical stage where the students question the police officer in question and made a closing argument on the motion that's a far different story counsel the sixth amendment requires an active advocate on behalf of criminal defendants whereas here we simply had a passive person as justice fitzgerald said just sitting in a courtroom and we don't think that's enough for the purposes of  hecking the right to counsel but the most important thing is that even if this court doesn't find a federal constitutional violation of protection of rule seven eleven in this will seven eleven violation itself is reason enough to  ant a remedy in this case are you saying that any time i defendant sense to have some alarm and student representing him he's giving up his right to counsel for anything that that student would say one hundred percent not completely but he certainly surrendering some portion of it if the right to counsel means anything it's really means the right to insist that no one actual counsel represent me at all these proceedings and it's certainly our position that if mr smith had been presented with the opportunity to say no i want actual counsel he could have said so and rule seven letter acquires that that bit opportunity be granted and we're at united but you're right you're saying your analysis that any time they made a big distinction between unlicensed counsel representing the kind of defendants in court in the first category of people who inadvertently became one license such as an attorney who failed of his parties but had previously been a licensed attorney in the second  category of category there are imposture attorneys who have never had it happen certified in a way and this court stated in that case that those in the second category have considered consistently and overwhelmingly been found to constitute a denial of counsel law students clearly fit in the second category because they've never taken the bar exam or have the character and fitness evaluated or any of the other things that must be done in order to achieve licensure  position that you probably don't if they represent a defendant at a critical stage that's that's a violation right there and it requires a remedy because you can't really adequately analyze what they've done t strickland standard simply doesn't work and i don't think there's another standard that some sort of median standard is not even been proposed i don't know what it might be when you see whether or not to defend it could establish prejudice it's our position that you can't because it's really dealing with all your honor our youth or even simply that the rules must be complied with the state stated earlier that cases across the country consistently have found no reversals necessary even when there's a violation however that to me that you have a situation where the defendant is in the courtroom at the time the seven eleven students perform it seems that in certain many circumstances the defendant would be aware of the fact that this person was not that i'm aware i suppose that's possible your honor but the record certainly doesn't show that in this case there's no indication the student never even said on the record i'm a student or i'm not a lawyer on operating on the will seven you are waving your rights council as you were in other waiver issues correct that's correct your honor but our position is not that we're talking about a full waiver of counsel as would be the case as the statement that what we're talking about is just complying with the rule we're not asking for on record admonishments or anything like that like you have another supreme court rules for total waiver of counsel which is that we require i mean wouldn't that be the next case on down the road that i didn't understand when i consented that i was hearing that my right to counsel trial i'm sorry go ahead your honor oh of the trial court also was not given the opportunity to step in and maintain the integrity of its courtroom by making sure that mr smith gave consent because there's nothing on the record to show that even the court knew in the trial and other we're drawing a line of critical stages you're utter such as this it is my case well i think critical stages are fairly well established there's a there's a lot of different points in the proceedings that can be described as critical stages trial obviously a critical stage  in this case we're talking about suppression hearing which is also been demarc ated as a critical stage in the truly case which is state relies on there was no relief necessary there because the student represented the defendant out of cour just providing some counseling of some sort that's not a problem because the student wasn't doing anything that only a lawyer is allowed to do such as step up in court and if you're in a critical s as long as there's consent is only the rules file they absolutely can be there our position is that the rule needs to be followed simply and it's only when there's a violation such as a total lack of consent or not bring it to the court's attention that that's when we step in and say this is inappropriate when mr smith's personal right to insist on actual counsel has been denied we're dealing with a case where the rules flagrantly violated in cases such as the coast prez cases say relies upon that those are per se challenges to the idea of participate or just be responsible they have to be responsible for the conduct we have no quarrel obviously with the supervision of what was in the record they were not responsible there's nothing specifically to indicate however the and i represent denzel w i'm in fact in this case the appellate court found that it was the appearance of a law student with two violations of rule seven eleven that required it didn't sell the created a new trial it was a violation of both the consent component and a violation of the super condition component and we would ask this court to affirm that position we have talked a lot about the importance of consent already today the point i would like to highlight is that the law student and didn't  case performed a significant amount of representation that only a place to turn it may provide she presented the testimony of two key defense witnesses to act at all and this is the distinguish that the court made in this case the appellate court did when they said we're ministerial tasks only that the law student provided then there may not that would arguably be a procedural violation the term was there but this was the last didn't standing a copy of a prior conviction and that was the only thing that the student said he didn't have consent to do it would not end up in a reversal of that case on a per se rule  compliance approach we would argue that the rule is arguably that's all i want to know that new right substantial compliance or however you want to put it that's that's a new consideration as far as complying with the rule right now it is found that there is no substantial compliance with the consent component when the law student is appearing and acting instead of the attorney however were or it could also i mean it's where there is still substantial compliance with the rule when it's the law student is not appearing in the courtroom it's a different standard it's the difference between c one and c two where where it's tasks that law students are performing that only an attorney may perform then the rule does substantial compliance is that stake that's not substantially complied with because the consent component is vital in those cases but in other cases such as truly when it's representation that is not something only a law student may provide then we would argue that the rule is substantially complied with or at least that the failure to obtain the diffidence consent in that case may be subject it is a true harmless error it's not something that requires reversal concer you started proceedings yes your honor therefore what do you mean by supervision is the supervision by the supervision but it's required in a licensed attorney be present and responsible for the conduct of the proceedings in this case the licensed attorney attempted to act on his client's behalf and the trial court said you do not have a right to act under those behalf your co counsel being the law student started this examination she has to finish it we don't allow tag team in this courtroom obviously in that case it's a plain violation of the plain language of the rule because the attorney is not responsible for the case when he is not permitted to act on his client's behalf were there would there be a prescription against acharya writing a note to this  say pursue this line of questioning or i think given that the rule requires that the attorney be present and responsible that implies that the attorney makes a decision on what his responsibility needs to be if he thought that it was only necessary to i guess i'm misunderstanding this court's question it's art i think it will seven eleven can be violated by the trial court as well if that's what you or your honor is getting for it and i think in this case that wasn't part of the manner in which real seven eleven was supreme court has indicated there are basically seven structural errors right that you know would be a per se reversal he indicated that it would be deprivation of of counsel in this particular situation i  believe the the way the u s supreme court's orders total deprivation of the right to counsel in thinking about your last answer to justice germann this whole thing were you know a licensed attorney wanted to counsel to to raise the level of a structural error requiring per se reversal rather than a harmless error analysis in that case i'm not certain that it would be an actual deprivation of the right to counsel if the client had consented at first to the appearance of the last event and then that the supervising attorney was at all times permitted to be responsible so long as they could maintain their responsibility it would not be but one of them were stepped in for purposes of argument fact there's no dispute in this case that there was not consent right right right so that's the whole issue i mean with with the lack of consent is there going to be a structural error raising to the level per se reversal versus a harmless error analysis stricklin analysis as to whether or not there was prejudiced the individual defendant so i'm saying what even in this situation where the judge doesn't allow licensed counsel to continue the the examination of the witness right is there even then is there total deprivation if there were still a supervisor supervising attorney there who could make suggestions who dance for recess could attorney was told by the trial court to sit down and in fact that he did not have a right to represent denville yes i would say that is absolutely a total deprivation of the right to counsel and so i would we would say that it would advisable to find that when what you in this kind of circumstance is a person a deprivation of the right to counsel it's also consistent with the way that this court enforces its rules it's unnecessary to reach that constitutional question because your honor i was touching on this briefly the rule has already been carefully drafted very carefully drafted to ensure that when it is followed compliance is found and it's very similar to cognizant when it was drafted that it is a cheating the benefit of law students to train so long as that representation is never at the defendant's expense it already contains the requirements to ensure that the right to counsel is protected so just like rule six fifty one c when you don't see that those requirements have been followed the broader right that the defendant has cheerfully trying to cheney is impacted so it would be irrespective of what consent is one of the components yeah we would submit a consent is vital to protect the rule but even when the defendant has consented when other components of the rule aren't violated or are not achieved then then yes we would say even if you if look look beyond the can definitely consent to the representation of the law student he's saying a law student me trained by appearing in my case so long as he assist counsel and so long as counsel is responsible so in that case when the rule is complied with he's not waiving his right to counsel it's waiver of counsel when the requirement when the rule is not complied with that's when the right to counsel becomes at stake because of the fact that the rule has already been carefully drafted when i see that my time is coming close i would also like to note that looking for compliance rather than looking for additional harm is a very easy and objective test for courts to apply or that will result in consistent results but still allows for case by case analysis in any case a court may look to the record see if the rule was complied with in this case the court would see that there was no showing of consent and that the there was no lawyer permitted to be present in the responsible so it would account for a case by case determination credibility case it's not always we don't know exactly why and what the law student was trying to achieve through her questions because she wasn't allowed to complete those questions and of her it counsel or defense counsel was not permitted to intervene so there's a certain extent that is still structural error but since she was going for credibility i do believe that there was harm significantly by the fact that she could not the last the jury the attorney could not complete  just like to start off by talking about counsel for ken a smith refers to the the defendant was denied the right to counsel for certain portions of the hearings in other words when the seven eleven student was participating that's it it was as if the public prosecution at specific points quote unquote rather than as a whole places the issue within the purview of chronic rather than strickland in the court said what that is is that the difference not of degree but of kind so the analysis even if the allegation is that  the defendant was denied counsel because of something that the attorney didn't do at certain junctures overs not there that's still not a complete denial of counsel under chronically gets reviewed under strickland i think it's also in response to there's been the suggestion that the to not do anything in these situations is to ignore the violation is to do nothing is to flout the supreme court's inherent authority to create these rules the state would say that what's happening is that it's not to ignore them it's not to condone their violation but only to hold that the defendant in such a sewage situation is not entitled to an outright reversal those are two totally different things the and the issue of people versus truly truly did hold and it's the only case in the state of illinois that says that refused to hold a purse a denial of counsel for the lack of consent and then truly it granted these a student in true it was not participating in court but i think it's important to note that seven eleven does not distinguish between situations where the students participating in court at a critical stage are not the rule itself requires consent for any number of things including her parents or the five copies or preparing the defendant to testify or other witnesses to testify or other things that are not would not be considered critical stages seven eleven store requires consent  i think it's also important and i guess i should have put this out earlier that the presence of a law student participating at a certain juncture is whether it's putting on a witness or or doing a closing argument doesn't cancel out the representation that that the fed has been receiving throughout the proceedings and that's what you call a cordon denzel w help it's that by simply participating at these junctures without consent it says if the defendant was going pro se that he didn't have a lawyer and i don't think that's appropriate from a legal or analytical standpoint the presence of a law student can't be held to by self vitiate the representation that the defendant already been receiving  counsel that's a separate right excuse me the right to counsel the choice so in that situation when a defendant is denied the counsel of his or her choosing he violations complete no no showing a prejudice is required however with the right to effective counsel the violation is not complete unless the defendant is completely deprived of his of his right to an attorney and that's  are simply advisory that they should be ignored but it's also it's a completely different thing to say that by virtue of the violation of one of those rules the fine is entitle to an automatic reversal so in this case because the defendant wasn't harmed or prejudiced anyway he's not entitled to a remedy the rule several of them does state that consent should must be obtained but it doesn't include anything that would direct a course toward any kind of a remedy because it doesn't i think it's important because it doesn't it is not so intricately connected with the right to counsel and to the extent that it is that's covered by the supervision component  the suggestion that during the trial of the education of denzel w that the defendant was somehow the private counsel when the public defender was not allowed to conduct a redirect examination and i think it's important to point out that the and it's again it's not as if the trial court told the public defender to leave the courtroom or prevented him from doing anything to continue the supervision that he had been providing thus far he just required the seven eleven student to finish the redirect examination which she did and she did ask several more questions the the largest problem with the the analysis and i think just as garmin pointed this out is that to define to equate consent with a waiver doesn't make sense and that's something that we try to impress on this court that and we did point that out in a footnote regarding juvenile court cases where juveniles can waive their rights to counsel so if the analysis in the in the the