not required to inquire into defense pretrial allegations and because the critical analysis cannot be applied prior to trial defendants first allegation which was brought almost a year prior to trial him in the form of a motion in total due process violation and eventually didn't have counsel at his arraignment and then he was not allowed to talk to counsel while in the lockout however this allegation was rebutted by the record as assistant public defender rosenthal appeared on his behalf additionally at the time he brought this motion he was represented by different counsel assistant public defender marcy this there is no reason for the court to inquire to find second allegation came in the form of a writer sent to the clerk of the circuit court  it was entitle dear circuit court clerk it over the edge that his counsel didn't enter certain affidavit subpoenas or nine one one tape into evidence he specifically requested that it be placed in his master file for an appeal there's no evidence that the trial court ever saw received or read this letter it was not addressed to the trial court and defendant did not raise these claims in front of the trial judge so the only claim the defendant brought before the court was rebutted by the record or was as he had new counsel defense other allegations were never brought before the court and weatherly a bandit is throughout the trial and post trial he never once complained to the trial judge about his counsel's conduct despite these and the reason is that the crandall inquiry is inquiring into areas of privilege tactical strategic areas prior to trial so to the extent of the trial court could ask about claims such  as my attorney which on my phone calls of course the court can do that and they already do they don't they don't need a duty to do so  allows for new counsel where there is merit to defend its claim for the limited purpose of representing to a claim of ineffective assistance of counsel as they had claim requires an analysis of stric and it can't be done prior to trial the problem with applying the stricken test prior to trial is that there's no way to tell if that alleged errors will have any effect on the outcome some errors would have a pervasive in fact some trivial effect depending on the weight of the evidence which we don't know yet since there can be no analysis of a claim of ineffective assistance perjury trial there can be no basis for conducting a criminal inquiry to determine if a defendant should have new coun new counsel for trial or for monitoring of the defense by the trial court defines new rules unworkable for several reasons the nature of the inquiry intrudes into areas of privileged tactics or dziedzic areas prior to trial it's prejudicial to the defense is it could unknowingly cause defendant to waive his privilege it's premature the court cannot tell whether there is possible neglect because the attorney still has time prior to the trial to do whatever it is the defendant is complaining he hasn't done it dition years would be a burden on the judicial system would require a halt in the proceedings any time was no but then because of the nature of the inquiry because the defendant is complaining about what his attorney has done or has not done in this particular case when the court inquires it's going to  cause the council to reveal strategic or strict aren't strategic or even privileged communications prior to the trial additionally trial judges would be required under defendants or role to comb through the well and in those three cases the court never reached the ultimate issue of whether can crank oh could be applied to pretrial additionally in those cases just because there didn't happen to be in that  question is whether or not the judge and choirs of the of the defendant goes to his complaints about his lawyer right in my question does the defendant who is being inquired about have a fifth minute fifth amendment right or have at least a right to as to the fifth amendment before such an inquiry is made i don't know the answer to that but i would think yes yes he would defend also claims it's not necessary to appoint new counsel to investigate allegations of in effect of assistance of counsel and that the court can remove defense counsel from the case and appoint new counsel for future proceedings this is not franco this is not an extension of process violation the court did docket that motion however in the actual allegations in that motion were rebutted by the record and additionally by the time defendant brought these claims he already had new counsel so there's really no reason for the court to inquire to under crinkle to determine if he should have a new consul to represent him on a claim of ineffective assistance of counsel he already had assistant public defender moleski there was no danger that assistant public defender rosenthal would be arguing his own ineffectiveness clearly these allegations were not the second allegations in the letter were not bob before the court so there was no duty to inquire the first allegations the court would not have had any obligation to inquire because the situation had resolved itself the ultimate goal remedy  the court certainly the court can inquire if the defendant asked for new counsel and shows good cause i think the court can just make a ruling on the motion i don't think there's a mandated inquire nor nor should there be likely would inquire but there shouldn't be a mandated inquiry for all claims that defendant at all times the defendant of alleging on complaint about counsel for the reason that it would intrude into privileged area or tactic strategic or tactical areas and additionally the to the court really shouldn't be stating that the court in a very difficult position to know what the nature of the inquiry that is this permitted we are you know i'm just trying to determine how a judge would he have to handle these are issues on a case by case consideration well maybe you're right i think that's what you're saying correct is the court has done in in the twenty five years since the crank phone calls and also my attorney will investigate or call witnesses and the court in that case inquired of the attorney you know about the phone calls and whether he would return his client's phone calls which turned out not to be true but did not inquire into any areas that would have revealed you know tactical privilege for strategic areas additionally it's really the court should not be getting in in the how the defense can ducks or he shouldn't should be getting involved in monitoring the defense which is the remedy that the my point is  situation yes of course the court should inquire however the nature of the inquiry in a conflict case is different because you're inquiring into the status of the attorney and whether or not their turn he has loyalties that lie elsewhere so you're time the court will address it where they can determine if new counsel needs to be appointed and they have they are able to look at the i think yours and compare them to see if they affect the outcome of t it please the court my name is katherine donahoe from the office of the state appellate defender and i represent the apple you robert jocko and as we've already discussed in the trial court mr jocko had concerns about the competence of his appointed counsel and he submitted multiple written complaints regarding his concerns and the state's final comments in the argument suggests to me that we're not as far apart on this issue is the briefs might suggest because we've never asked for this to be remanded or for appointment of new canst new counsel we've asked that this matter be remanded for some type of inquiry and the state has acknowledged that an inquiry might be necessary one example is proposed to the state if there is a failure to visit the defendant in jail throughout the pretrial proceedings it might be met necessary for the court to make some inquiry to ensure that counsel is on top of keeping on top of the defense and this can be done without micromanaging the defense or getting well in this case at the moment mr jocko made some complaints that were brought to the trial judge's attention and the record indicates that the trial judge actually set for it for those issues to be addressed on may twenty fifth two thousand and six and they were not so in that in this case there were multiple written documents and they required some incur into the factual basis underlying them and it's really something that's going to have to be managed on a case by case basis similar to the guidance this court provided in people v more and this this isn't really a new issue this is something trial courts are asked to do every day to oversee the fairness of the proceedings and ensure that the defendant's rights are being protected and child judges have the ability to recognise boundaries and to not get involved in micromanaging the defense you disagree with the states  about well that motion was filed in and set to be addressed on may twenty fifth and it never was and it's true that one of the allegations contained in that motion was that there he was denied the right to counsel and derangement but there were myriad other change in counsel take care of the problem because there is not a record of what exactly these claims are all about beyond mr jocko as written allegations and the fact that the trial court set this matter to be addressed and then forgot to do so as far as we can tell just allowed this to slip through the cracks shows that we don't really know if the trial court had other reasons to set a hearing on this matter also you said earlier that  defendant had filed a motion and the trial court allowed to fail to appoint counsel independent counsel to look into these allegations so that case got a little farther than what we have here this case is a little more similar to more where whether you're just talking about on the facts specific races this court should have made inquiry that's correct your honor this isn't just in a matter of extending crank all this is a part of the trial court's ongoing duty to ensure that proceedings are fair and i think defendant's right to effective counsel is protected and you agree do you agree or disagree that there might be some things that the defendant raises that might be inappropriate for the tro work to rea circumstances of the case and even as this court guidance and more suggests the trial court shouldn't be getting involved in matters of trial strategy if that and it makes some allegations of his counsel's ineffectiveness and when he starts to explain it it's apparent that it's all matters trial strategy and the inquiry shouldn't go any further if on the other hand it's complete neglect to prepare for the case and it's not just trial strategy i'm not calling these witnesses it's the defendant saying i have given him these addresses and names of alibi witnesses that will prove my innocence and he's done absolutely nothing for a year now to contact them that's not something a little different that's neglect that's not just trial strategy step certainly would not be to appoint a new attorney it would be a preliminary inquiry and as the state suggested it may be appropriate in some cases for the court to warn the defendant that by participating in this inquiry he may be giving up his fifth amendment right and things that he say may be later used against him in court to work to demolish and it may be necessary in some cases but that but then i mean this this court has already recognized in cases prejudice that might occur so right or to any ability of any prejudice well with the initial inquiry of the standard this court unseated in more would be appropriate just that that at that point the inquiry is just to determine whether there is possible neglect prejudice doesn't exactly come in very neatly to that part of the inquiry but if there is some indication of possible neglect then the court may need to consider prejudice but it's not the type of prejudice  because at that point it said anything that has gone wrong may still be terrible it's just a matter of the attorney not meeting with the defendant for two years of pretrial proceedings that can still be cured at that point and it's important to remember th supreme court was faced with a situation where this was a different context it was after the trial and so what the defendant was seeking was a new trial and reversal of his conviction so this case even though the concerns of stric throw motion based on ineffectiveness of truck and also with the point of counsel different than trial counsel they specifically point that out after saying that the court should have followed correctly so my question is are you saying we're supposed to or you ask up with any type of hybrid or are you asking us to go up with a hybrid us mr fermi oh well the situation is a bit different because it was in the post trial setting and so what we are asking this court to do is to remand for an inquiry and it's not  certain at that point that new counsel is required but i don't think they'd be analysis needs to be so different from what this court articulated in people the more review i wanted to show a conversation with the defendant to get the  understand the factual basis of the allegations that have been made and to determine again if there was possible neglect if the court if the court did nothing you still could have a there are several reasons and judicial economy is certainly one of them and in this case mr jacko had a full jury trial and so this is the time very much time and expense was spent on the trial without these proceedings ever being evaluated beforehand but another reason is just the basic fundamental principle that a defendant is entitled to effective counsel at all stages of the proceedings and so he's entitled to effective counsel before a trial and in preparation for trial make any inquiry and that went with respect to whether or not to make any inquiry it would be similar to the post trial setting whether or not the allegations are brought to the trial cour attention and whether or not they are just at that point the ramblings of somebody who wants to micromanage his defense and is a chronic complainer and this is been brought up and dressed the far whether this is triggered in a similar way to how it would be post trial and the trial courts are already doing that on a regular basis and they know how to do that and then with respect to how to conduct the actual incurring again there this court hasn't issue very specific guidelines with respect to do with the post trial setting we have the principle set out in more of this and initial inquiry perhaps some discussion with trial counsel perhaps it can be remedied just by a few sentences exchanged with the defendant and it is going to be something that has to be done on a case by case basis because it's impossible to define what a trial court should do in every instance because these types of allegations can arise in so many different context make a statement that anywhere is necessary there certainly will be eight hours and i'm i'm just wondering if in the pre time pretrial context that the case by case basis is in a better way to go did it under the facts of the which your thoughts on that well as i understand you or your questionnaire honoree are asking whether it's appropriate for at it to be up to the judge's discretion on a case by case basis whether to conduct a in korea at all and and that's that's i think how it's already functioning in the post trial setting and that would be appropriate in the pretrial setting when there are allegations that are clear that the defendant is questioning the competence of his attorney then there should be some kind of in korea it may be very brief you just can't be ignoring this these campi claims can't be allowed to slip through the cracks but then it will be  exactly the same factual scenario as the u s supreme court saw in strickland but those are the same types of principles that they we understand to be what constitutes competent assistance of counsel what would be wrong if we just left it pretrial issues and the state has effectively argued that the trial judge is powerless to do anything and he said some i understood in response to some of the questions by your honour's that they acknowledge point but in their briefs they've argued that a trial judge is just powerless to do anything even if there are concerns about counsel arising from the judge's own observations let alone actual allegations brought by the defendant and  we're just asking this court to recognize that this is not a new issue and that the trial courts have an ongoing duty to ensure a fair trial and the right to effective counsel and in this type of case where a motion was filed it was set for hearing and then it was just completely forgotten allowed to slip through the cracks that the trial judge at a minimum must make some record of why it never held the hearing that it did found by necessary at an earlier stage you said some brought up another question my mind you said something that would indicate that you think there is some sue a spontaneous duty on the part of the court to hold some kind of an inquiry in the absence of  request from the defendant if the judge doesn't wipe away the think the case is going they should make an inquiry about counsel's effectiveness well that that's not what you're asking that's not an issue that this court needs to decide in this sometimes a judge might not that there's a duty to sue a spontaneous evaluate whether counsel is being competent based on a particular action but that there are situations where without any input from the defendant the judge does have a can have concerns about the competence of the attorney and by the state's logic the judge couldn't do anything in that case that he or she would be powerless to take any action and we believe that the trial judges should have the discretion to address the issues because it's part of their over duty to oversee the proceedings and they recognize their boundaries and they can do this without trampling on the right to counsel the right to present a defense and so in some iran or is that the this court and at the trial court should be required to at least briefly address the factual matters underlying allegations of ineffectiveness to determine if there is defendant is not denied a fair proceeding just because there may have been air prior to trial there is no sixth amendment violation unless the errors actually affect the outcome of the trial in this case the defendant did not make any allegation that he didn't get a fair trial and did not allege that his trial counsel was ineffective the nature of the mandated inquiry would be prejudicial to the defendant would going to be well what witnesses you want called what was their proposed testimony what did the defense attorney know about it and what did they do about it this is going to be intruding in areas it should that be entry from prior to trial and in almost every inquiry the defendant is going to put complain about what the council did in this case in his preparation of this case so it is always going to be a problem