counsel may please the court district courts have considerable but not unlimited discretion whether to grant or deny a motion to continue a trial that is made before that trial in this case this is one of the rare cases in which the court by its own actions created and then exceeded the limits of its discretion how can we hold that the trial court abused its discretion with the trial exhibit with mr reddy a present and the court had concluded that it was a straightforward case and mr jackson knew the facts this well as anyone the court also conclude it would never find a lawyer to take mr right is place at that point and had jurors who come facts all over that area  many are farmers could not be reached they given up there that day i mean how can we say that judge bruce had abused his discretion if i may your honor i'll address those in reverse order so the question whether the whether the court abused its discretion because it says that it could or it said that it could not find substitute counsel assumes that it was not going to continue the trial in fact the court had already decided that a month before at the initial pretrial operates on august twenty six twenty fourteen i'm like to interject that in the grand effort to keep litigation costs under control district courts are strongly encouraged to set trial dates early and to make those very firm date so in that sense judge bruce following best practices what's true your honor that truck courts have discretion to make sure that their dockets are moving forward a pace they're encouraged to keep the parties realistic for example to keep chances of settlement at their to keep to keep things moving in costs under control so it's not like he did something that was extremely unusual or something that's frowned upon the mere act of denying the continued certainly was not extremely unusual what was unusual however was convincing mr jackson of the virtues of mourning for trial and then immediately granting the motion of of counsel mr audio to withdraw but it wasn't quite immediate because what he does when mr roddy a pops up the minute mr jackson decides to accept and mr roddy you asks to be excused is he does something quite sensibly says one should you talk to each other for a few minutes you know and come back and tell me where we are and they do and mr audio renews his motion that's true your honor mediately before that colloquy the court had taken the time to convince mr jackson that going forward on his own would be like doing surgery on himself and rightly actually agree and then secure disagreement to go forward with mr ravi but then didn't circle back and ask mr jackson whether he agreed with that and in fact ravi made clear that either mr jackson needed additional time to prepare or to obtain substitute counsel and if he didn't get either of those things he would be prejudiced so i think the record is clear that neither mr jackson nor mr robbia assumed that what transpired would result in mr jackson having to go forward the next day on his own and represent himself a trial but what prejudice was there other than the fact that mr jackson blundered into some some errors that you know a lawyer presumably would never have have committed so i don't see for example an expert witness that needed to be called i don't see complexity in this trial it's really just you know what happened was he tossed into the van headfirst and it's his shoulder hurt him they put him in and locked him up appropriately well that's true mr jackson was familiar with the facts but he was not prepared to articulate and presented a case if you look at the record of the examination of the two principal witnesses mr willis i'm sorry officer willis and officer payne it's clear that he asks open  questions he doesn't ask the sort of direct questions that you would expect and that a lawyer would have asked on cross examination but more what would other months have made him better at cross examination just trying to say in his flaws are the flaws of any pro se lit and that's too bad mean that's why we have lawyers right that i don't see additional prejudice i don't disagree that those flaws manifest themselves with procedure litigants generally we do have another special circumstance in this case which is that there there is an identification of the of the other witnesses for lack of a better term that was not produced to mr ravi or to mr jackson until mr ryder came on the scene it's unclear from the record he got it when the court set the due date on september second or when mr ravi has said that he he received it kind of twenty six if it was the twenty six he had five business days before the trial started in order to subpoena these additional witnesses and the defendant's fault mr jackson for not presenting additional witnesses after having not identified them but it had five business days to subpoena and present these for the other people who apparently would have been an occurrence witnesses seeing how this van transport worked correct your honor they were identified on the roster for the logan correctional facility on the day and assigned to the segregation unit at the local facility on  day of the incident now try no i a lawyer would subpoena these witnesses without without having any idea what they would say and then put them on stand so he finds out in five business days or perhaps a little bit more we don't know that there are these additional witnesses so that is a concrete thing that mr jackson or another counsel could have done but to your honor's earlier point it's certainly true that mr jackson could have taken the time to plot out  better examination he had depending on how it's counted maybe nine hours maybe thirteen hours with the documents to sort of the similate them and prepare to present his case so it's it's true that he had to throw it together for lack of a better term and he could have done a better job of that you also mention the judge would that he blundered into several errors that a lawyer would not have made and that's absolutely true and would submit that if he had had time to familiarize himself with the rules of evidence he would not have done that and certainly if he'd been able to locate a substitute cats thinking particularly of opening the door for th thousand and seven report coming in yes in the may two thousand and seven report that you're referring to has allegations in it that mr jackson made death threats against prison employees so those threats were entirely unnecessary to prove the point that the defendants a certain they were necessary to prove which is that a i'm sorry can simply hear it which is not really turns on the point that the defendants assert is that look this two thousand and seven transfer is entirely different from the twenty fourteen transfer and you can't just say that you're not going to be transferred in and that's the end of it that's never in dispute mr jackson said in his narrative testimony that look in two thousand and seven i was being transferred and i refused it and because i refused a direct order i was punished that's the point that the state says that it needs for this death threat evidence and instead didn't hear the beginning of your question why didn't defense counsel have a right to explore the circumstances of the transfer well once or transfer comes up i think the answer to your question is maybe and in this circumstance no because the point that was asserted was that a prisoner cannot simply refused to be transferred and that wasn't disputed so the defendants went beyond that and introduced the death threat evidence that mr jackson disputed mr jackson thought you had kind of an option to decide what prison you felt like going to  need i think that's a problem with mr jackson's terminology because if you look at the rest of mr jackson's testimony mr jackson says that i have the i refuse this transfer and when i did i was punished for doing so so he recognizes that he doesn't have an unlimited right and i see that my lights on and i'd like to research that's fine good morning in a please the court and assistant attorney general christina hanson representing the defendants there's no basis for overturning the jury verdict in this case mr jackson claims that the district court committed three errors that deprived him of a fair trial but all three of  rejected the thing that worries me most about this sequence is what the trial judge does what judge bruce does after mr rogers and mr jackson confer for a minute or two after this initial call of the judge is gone out of his way admirably to convince mr jackson that it's very foolish decision to try to represent yourself and then mr roddy pops up and says wash i want out any way they talk and the only person the judge talks to at that point is mr roddy you he doesn't circle back to mr jackson and say you know your lawyer is saying he still wants out but are you willing to have him as a lawyer and if mr jackson had reiterated yes you know i'm going to be cooperative you know i realize i'm better off the judge might have denied mr roddy is motion to be relieved for representation and instead of just having mr is stand by you have really had a lawyer who would have understood rule fluoro to would have understood how to limit testimony who have known to ask for limiting instructions who would've in essence you know gotten some of the garbage that mr jackson introduced into this record it never would have been articulated so i see that as like the pivotal moment and i'm very disturbed that the judge didn't actually go back to mr jackson himself and ask him well your honor but if we if we look at if we look at the circumstances of that that occurred in counsel and mr jackson had about twenty minutes to confer and after that time was up recruited counsel came back and sad i've had a conversation with mr jackson it's clear that the impression i formed on friday has been confirmed today with today's conversation with mr jackson he fundamentally distressed me and basically we agree that under the circumstances we cannot work together as attorney and client so we're going to so hard with judge bruce turning to mr jackson saying mr jackson is this an accurate report of your feelings you just told me twenty minutes ago that you wanted to be represented by mr ravi to have you changed your mind two seconds right but if we if we put it in the context of the entire hearing and mr jackson created the situation that led that that put him here in the first place he filed a motion asking his counsel to a try and submit it with a six page affidavit detailing  so the fact that he had a momentary a moment of cold feet in the middle of that but after twenty minutes of conferring with his recorded counsel has recorded counsel represented that we that that he and mr jackson agreed that that mr jackson would prefer to proceed on his own satisfied the trial court at that point and consistent with that statement mr jackson made no objection at that point to his counsel withdrawing and it was it was recruited counsel who asked for additional time not mr jackson at that point so i think you know under an abuse of discretion standard we don't ask what another judge would have done but whether no reasonable person would have conducted the trial the way that that  trial i mean it's doesn't really seem very balanced and i'll tell you what bothers me a bit the disciplinary report from two thousand and seven from that transfer incident it was into evidence by sending it back to the jury doesn't that invited jury to unduly focus on that incident instead of the matter before it and prejudice of the defendant greatly i don't think so your honor because first of all mr jackson there was a sidebar with respect to the two thousand and seven disciplinary report mr jackson denied the denied the findings the administrative review boards findings and there was a sidebar with respect to what to tadic proceed at that point the district court considered considered it weighed the factors and how to proceed and decide and decided that it would be better to just admit the reported already been testified to to admit the report and let the jury give it whatever weight it was going to and mr jackson agreed with that decision and so at that point mr jackson waived any argument he had to  mr jackson again sad i'm fine with that you're am i'm ok with that going into evidence and so at this point he shouldn't be permitted an appeal to can back and say that that was reversible error he waived that argument not only a trial but he also waived that argument on appeal there's simply no basis for applying a plane air analysis to that issue  and likewise with the with respect to ban it's the testimony that cross examination testimony that also was a waves issue whether defense counsel could be permitted to inquire into  his into the fact of his incarceration the only extra fact that comes out there was that it was a felony secor act i mean he's already said a lot of things in his opening statement correct in his opening statement he already said figure that out right and it's it's clear to the jury even from the outset of the link from the outset of the case from the statement by the time board at the opening of the case that he was you know at all relevant times litigation he was incarcerated by that at the department of corrections and so there really is no prejudice from that statement and and additionally he's the one who brought it up and that's the same situation with the disciplinary fork it was it was mr jackson who introduced that evidence and actually tried to use it tried to introduce the report himself through and through the defendant's testimony and then in his own case in chief he attempted to use that evidence to show that he had some right to refuse transfer and that the defendants in fact were acting inappropriately back i not allowing him to refuse transfer and so once he opened the door to that evidence the trial court was absolutely accept it absolutely would have been prejudicial to the defendants to not allow them to pursue proceedings you know and i think it's important to note here as well with respect to that the district court's discretion in not granting the continuance that they were valid considerations that the district court was looking at as is judge would pointed out district courts are permitted to look at their civil docket and and take into consideration their the court's calendar and the inconvenience on potential jurors the inconvenience on the parties and third party witnesses and those are the factors that fueled the district court's decision and against that mr jackson came  this issue on the eve of trial on the afternoon before trial and the trial while it while the district judge went to lengths to explain to mr jackson that there was no way that he could recruit substitute coun him and there was no way to delay the trial at that late stage after consultation with his record counsel mr jackson and counsel agreed that ms i mean you could delay the trial he was the judge after all he just didn't want to because of all of the wheels that have been set in motion whether it was the jurors traveling to the courthouse or whether it was you know the equipment that he had order or whether it was you know his own calendar there were a number of factors he just thought it was inappropriate to push it back and that we are your and i was that he could conduct discovery but there had been a hearing on september twenty sixth relating to discovery and the district court after court of counsel if discovery and if he'd received all the discovery that he needed and that september twenty s to express to the court that discovery was a dead issue if there was a time to ask for a continuance with respect to discovery that would have been it however the recruiting counsel represented to the court that discovery was a dead issue and here on appeal mr jackson's counsel argues that he could have presented more evidence or he could have subpoenaed traveling this is but the fact is that all he's offering is his own speculation on that why he hasn't offered any and the affidavit or anything suggesting who would have called and what that meant was what if that and how it would have changed pam how it would have affected the jury he's offering only his own speculation and that's not a basis for overturning the jury's verdict for those reasons and  with respect to the discovery of counsel just said that if there was a time to ask for a continuance that would have been it mr jackson filed a document that explained that one of the issues that led to the this breakdown with mr audio was mr audio to follow up on the discovery that he had just received so it's sort of a catch twenty two that the scuse me that the defendants have put mr mr right and mr jackson in that ok we're going to give you this either a month or five days five business days before the trial and then we're going to fault you for not following up on that that's just not that's just not fair i had never asked for for anyone who was in the transfer area near the transport van not even their names he'd asked for that from the very beginning of the case he'd filed multiple motions to compel multiple motions for sanctions so what was mr roddy talking about reset all the discovery was produce well finally after mr ravi appears on the scene mr jackson gets these documents and so he knows their names and  explicit express of the court that there's a disagreement as to trial strategy that is that it's a clear strategy decision that should be allocated to the client and it's clear that mr ravi and mr jackson assumed that either the court would give additional time so that if mr jackson wasn't going to give additional counsel he could do that discovery himself because again he'd been seeking these documents and this information from the very beginning of the trial and it's somewhat egregious that he doesn't get the names of the principal witnesses until he gets an appointed lawyer and then he gets an appointed lawyer but the lawyer doesn't go through follow through and subpoena these witnesses and i think it's understandable that mr jackson looks at the situation and says i don't like what's happening here i want to either represent myself or get substitute counsel and he wasn't offered an opportunity to do that  to point that counsel made at the beginning she said that mr jackson made no objection to continuing to represent himself mr ravi and made that objection on mr jackson's behalf mr roddy had made clear that mr jackson would be quote severely prejudiced if he were forced to go forward with trial on the schedule that had been preordained so that's not an objection that had been waived with respect to the two thousand and seven report counsel said that the court had already decided that the court decided that it would be better to admit it because it was already in well that's right that the damage was done and the court compounded the damage by sending the edwards against dallas stock in the rest of that line of cases i think that the gilbert instruction would have helped him more than sending the document back and then allowing the defendants to hammer on that issue at least three times during the closing but there are as there must be limits to that discretion and we submit that in this case this is one of the rare cases in which those limits were met and exceeded and so we respectfully request that the verdict below be reversed and the is going to take a ten minute recess right now