good afternoon when it was all the sick or your on behalf of the petitioner james p barnes like to think the court's time for a long oral argument on this case this afternoon first of all i would like to say that i'm asking this court to reverse the district cour decision denying relief because mr barnes is six amendment rights against six member right to self representation were violated due to the fact the special counsel was appointed in this case against his vigorous and continuous object objections at the level now mr barnes elected to go pro se and by doing so the trial court initiated a proper procedures by asking him whether or not he was competent based on a query you know according to federal law statute law so mr kopp and mr barnes was found competent to proceed he was found competent to represent himself so at that point mr barnes elected to proceed by pleading guilty to first degree capital challenge that your honor just to the point where he was offering mitigation in the form of his coming forward when his view he confessed and that was mitigating right but in terms of his background his schooling record says medical records met mental evaluation all of that nobody would ever know about it if the case proceeded the way you're advocating right what we're going to the court would have a couple different options the court could for big any information against mr barak his wishes regarding medical record done and that p s i would have contained every bit and more of any possible aggravating information against your client without the benefit of a mitigation counsel who could have put that in the best lie well your hon found anything in there that he found to be objectionable because that would be based on this right to cross across our right to confrontation he'd have a right to challenge for us but by calling dr  expert retained at trial by special counsel i would say that it enhanced the aggravating factors of the p s i i by putting it in a certain context the special counsel instead of putting it into a a medication context dr  extensively by calling mr barnes a social path psychopath basically saying easier redeemable dr reef same testified at trial that when mr barnes was two years old he broke into a mail truck and stole up a car understand the doctor's testimony was to say yes to act out what can you do those are the facts but this is a man who was born with sort of an organic brain disorder he couldn't really go that far because your client refused because mr barnes refused to have any sort of neurological testing but to say this is a man who was born this way a man who had cocaine dependence so this is a man whose home environment only accentuated those preexisting strikes understanding was it was to show some mitigation that he's not responsible for being the way he is is that not how you read the testimony it can be read that way your honor but also the information came out against mr barn forever versus california that is still good law and based on that mr barnes has a right to proceed regarding how he wants to proceed regarding mitigation how he wants to present his trial in his own way the content the organization that's a language one for every california that's language from macaskill be wiggins so i understand the tension here understand the fact that there is a wealth of so called mitigating mitigating circumstances that wouldn't be brought forth before the court but we still have for be california's good law and if individual the size that he does not want this information put forth before the court that's to be that individual's right well let's let's talk about the context in that this is a state senate and our review is under the anteater as a matter of fact of death penalty act and i would take it that he would say the best case for your argument is the one that not a state case but a federal death penalty prosecution and that one in the fifth circuit the davis decision that concluded that the self represented defendant when i look at that that's one that divided the fifth circuit panel judge judge dennis wrote a really strong dissent and we're supposed to get we're supposed to federal case and i'm wondering how could we say it's unreasonable to basically have concluded what judge dentist said defense circuit and and did argue motions and make objections the defendant in that case acquiesced it was kind of a hybrid representation so would be agree with me that that really the best case to have for the for the notion that there is this that the right is not absolute right right and it at least davis says in a similar kind of contacts although there are some important differences the florida supreme court brings up here going to talk about but that's the closest case right that's probably the closest case you're on and i and i can see this is not an easy issue when we're dealing with the death penalty the machinery of death we're there's a tension between for rights versus the need for individualized sentencing versus the need for this state not to be used as a mechanism for suicide however the right belongs to the defendant in cases where we're talking about like we're going to be smith or or you know even going our way back to great more talking about the need for researching mitigation and narrowing narrowing the class of defendants we're trying to make sure that the defendant's rights are protected cases involving ineffective assistance of counsel for those cases were cited in the state's answer brief and i would say that they're not on point because we're talking about those cases where appointed counsel is wanted by the defendant in an appointed counsel does not do a reasonable job i want to go forward you know when i look at even the davis case which divided that panel and then i consider what the florida supreme court said here about that the florida supreme court said well there you had to defend president pursuing a residual doubt theory and to present mitigation really is in conflict with that that's not true here or the defendant has confessed and is expressing remorse presenting medical mitigation is not in conflict with that and moreover in davis there was an advisory jury which could be confused about what would happen in the event of count so presenting mitigation that conflicts with what the defendant wants and hear that if and it waived is why write to an advisory jury and i wonder whether that makes it even harder for you in this context to say that this is an unreasonable application of clearly established federal where you wanted to bring up your last point first i was in that even though there's no advisory jury the fact that mr barnes is still cross examining a so called mitigation witness on the record is a clear violation of the sixth amendment rights more talking about what a jury might or heard or what a jury might witness we're getting until maybe does not violate the sixth amendment that's what i'm focused on and kind of context whether that makes your your argument harder it may make it harder if there is a jury to challenge more testimony and mr barnes according to the testimony just before this court in the record i'm paraphrasing stated that i afterward dr reef same had to say i really have nothing else to offer the damage has been done and and mr barnes i was ultimately right you know and  and even though a jury was not present mr barr's still has six a member right to self representation and he's seven damages been done but based on that testimony the court was able to glean i think or different mitigat rs extreme mental emotional disturbance for long drug use no loving relationship with parents sexual abuse as a child your client didn't want any of those to iraq or to be considered as mitigation but that was the net result of his testimony but if that's true yonder and one of those was a statutory mitigator the under the influence of extreme mental emotional distress because of his cocaine the prince and there were also several non statutory mitigators and all the aggravators would have been there whether we had this presentation or not that is correct but suppose mr barnes had a trial attorney a trial attorney might make of the terminations based on consulting with the defendant that we're not going to put this information on because of the double edged sword not something to sort of course are a lot of times so even though something might be considered mitigating so much damaging information can come out based on that the quick trial attorney often makes a decision that i don't want to put that on and the defendant agrees with it  mr barnes has his own counsel has the right to make that decision that i don't want to put that information on and here we had last as the language infrared is used a legal fiction where mr barnes had counsel when that counsel was really not representing mr any further questions well you know like it's just i mean it's the the trial judge it was in a tough place i mean and and again i come back to you know the hard job you have to do today  i mean if this went according to your statement of how how you think the case should have been handled we would have a judge without a  jury making a decision about whether to send mr barnes to death or not without having done any mitigation investigation i mean that that can't be a good rule can it would look problematic however mr barnes is still an individual and the judge still does not have to sentence in the death without a jury the judge as an individual we're dealing with individualized sentencing if an individual decides i don't want certain parts of my background investigated or to the extent they are investigated i don't want that put on the record for the courts consideration i would submit that that should be considered because of for it i mean if we if we don't have to meet this what if you brought up the pre sentence investigation report what if that court instead of a employing an attorney just have a court officer like a probation and pretrial officer prepare a report that had the same kind of information while you are in that case i would submit that mr barnes would have the right to challenge anything that he found to be aggravating or inaccurate but he has that right when mitigating evidence is presented by the court appointed counsel right but a court appointed counsel representing mitigating evidence well on the on the behalf of somebody that doesn't want it i would say it was is a legal fiction well and maybe but my point is the court appointed this council because the court felt that the coordinated this information to perform its duty ok and and  college legal fiction to say he's really representing the defendant because he does have on him my point is in a real sense it seems to me the lawyers doing is performing a function for the court that i court officer might have performed as well and if a court officer as opposed to an attorney had done it and come out at the same maybe it might it may still be a six amendment argument how would that be because if in this case we have a special counsel doing that we have attorney doing so if the if a court appointed somebody to put forth information on behalf of the defendant that's considered possibly mitigating mr barr the defendant should still have the opportunity to challenge it if not overwrite what if is inaccurate what if some of that information is not only aggravating to mr barnes his opinion what if  but i would state that's still not as damaging as having the cross examine a witness that you don't want that's allegedly put forth on your own behalf i mean this is this is certainly a tricky situation but we're dealing with capital punishment i mean that's  if this was like a straight robbery case or a grand theft case it would be it will be easier we'll be dealing with advisory potential like in another case we're dealing with advisory jury here is no jury but we're dealing with eighth amendment interpretation paradip that the state court did under deep it is we've said and right the secretary of florida department of correction that the state court supreme court's ruling had to have been an error that was so well understood there's no possibility for fair minded agreement the fact we've had this exchange for a while would seem to me to suggest there's no way we could say that the florida committed that kind of clear error would you agree not quite your honor because whenever we're we're arguing always say that it's just because we're debating this issue and there's no clear clear cut guidance i would still say that this court can still make a decision on behalf of protecting mr barnes a sixth amendment right to self it please the court timothy freedom here on behalf of the state of florida this case illustrates the fundamental tension between the decision fred a to the sixth amendment and the requirements that the s supreme court has elicited under the eighth amendment through the the decisions of law could and things in that family of cases that the position that the defendant takes here appears to suggest the federal law does not say anything about who may present this type of mitigating evidence if for example in this case the state attorney had stood up and said we have the following mitigating  present i don't see that any us supreme court decision would prevent the state from presenting mitigating evidence the trial court in this case saw that there was a need to present to it investigate mitigating evidence and appointed as rich a body of information as counsel was able to heal i think if we look at what actually happened here there's no reason to think that a p s i i could not mainly interested in is does the record tell us why the trial court felt that it really needed counsel to do that and the p s r wouldn't necessarily be enough well if we look at what the florida supreme court said in its decision it said that the trial court had the advantage of a previous report from this same mental health expert dr reef same that tipped off the court i think we can reasonably interpret that there was available mitigation out there that the defendant was not willing to present and under florida law in those circumstances since we have to have a p s i i anyway for rules of criminal procedure i think is three point seven zero places it within the trial court's discretion to appoint an independent counsel to investigate whether additional mitigation exists and that's what happened here so we're really considering whether this application of state law is a violation of federal law and i don't see how it possibly could be if we look at the judge current issue pointed out that look at the sentencing order we could see a wealth of mitigating evidence that was relied upon by the trial court in imposing this death sentence that would not have been available to the trial court if the defendant had had his druthers how can we say that one constitutional right the sixth amendment is more valuable than another constitutional right to aid them and since when does the sixth amendment trump the eighth amendment since when can a defendant use the sixth amendment to prevent the trial court from conducting an individualized sentencing proceeding or like the supreme court has said that it must do i just i have a hard time accepting that there was exactly right we have to allow the trial court some discretion to consider mitigation even under the circumstances where the defendant objects and prefers not to even even under those circumstances  that's really the extent of my argument i have no other argument if the court has any questions thank you thank you mr prager and mr sure you have ten minutes you the defendant's individual rights to still control these matters know what we're talking about eight the memory principles when a defendant has a lawyer we're talking about protecting that individual's rights to the extent the individual is competent to so if he was given his full rights and he decided to rely and this is mitigation the fact that he's helping the state solve a cold case with horrible facts but he helped the states all that case and he decided that he want to save the state resources an investigation put a family's heart at rest as far as what happened to their loved one expressed remorse based on his conversion to a muslim faith that's his right to rely on that and i think it will set a dangerous president if we start taking away these individual rights of competent individuals you know if mr bond was not found competent would be arguing a different issue here you know if this was a rash decision by the court to let him represent himself like we've seen in other cases i'd be arguing a different decision if it reached this level but every step of the way the court made a reason inquiry of mr barnes and make sure he was competent proceed to make these decisions so since he was and since he has a six of them are right there would be it would be upholding for retta by allowing him to have this case reverse sent back to the trial level for a new penalty pruett proceeding and at that point of mr barnes decides i want to just rely on my confession and that's it for the reasons i just mention then the court should should should take that into account and use that in that on but to the extent the courts allow to allow it to order p s i i which is based on florida law ok that's one option for this court the court can still order a p s i i but to violated once this lawyer was a point to conduct these this research and this investigation and present this testimony the mr bonds objected to he had to cross examine his own so called mitigation witness i mean that's probably unheard of i didn't find it in any of my study i don't know if this court seen it but that's assess a dangerous precedent what happens if there's a jury next time what happens if next time ok this is a court ruling is up till now the eleventh circuit has issue barnes to the secretary department corrections for florida now it's ok for the court in the future to appoint special counsel against the wishes of competent efficient defendants who want to proceed pro se and then we have a person in front of a jury making cross examinations of so called witnesses i mean i was submittal make a mockery of the of the of the court you know and and i'm asking this court to reverse allow mr barnes to decide whether or not he wants a penalty phase proceeding not it where in a post hearse florida in her speech state world or if he doesn't and he likely won't based on his his history allow mr barnes in present his confession to the court for the course determination and the court would order a p s i i and that would create another issue for litigation that's part of capital jurisprudence i mean whenever there's a capital conviction in a sentence that there's go