court should reverse mr harland's conviction because the district court did not permit mr harland to proceed pro se at trial as the record reflect any request prior to  trial there are suggestions in the record in fact explicit requests for substitute counsel prior to trial but but it's a little different that yes that's correct judge look and that  s a completely different set of circumstances and mr harlan concedes that his st request to proceed on a proceed basis was the st day of trial not the last day of trial not even halfway into the trial how long was the trial the trial was today trial judge been and the request was made after the government's st witness i think the government called nine witnesses and so the st witness the there's a lot of emphasis on i didn't i didn't he wouldn't ask the questions i wanted asked now are those questions in the record those questions are are well yes i wrote them down do we have the writing that we can see we do not have the writing how do we know what those questions were well so i do think the questions are in the record when the trial when he says i don't know what my defenses are and i've only got three hours of courtroom experience but i wanted to ask the woman i've been living with who's accusing me of assaulting her i want to ask her questions the lawyer i want to ask questions and  the lawyer wouldn't and now i want to ask it that's a very dicey situation so i just i want to know what those questions were i want to see whether whether he was looking to to intimidate or or matter under threat or standard it could be that mr harland didn't didn't want to ask when there's any question less in the middle of trial there's a great deal of discretion under fred and all the cases that construing forever in the middle of trial the standard i own my home alarm my alarm my fire alarm would go off in this situation when there's no hint of a desire to solve represent until the accuser and it w in a domestic relation the accuser leaves the stand then he says i want to ask her some more questions and i don't know that the record supports the idea that it was just the trial attorneys refusal to ask certain client wanted to self represent which raises a whole new for at a ballpark so this correctly reports correct and so only reason given is i wanted to ask or he wouldn't ask the questions i wanted to asked that omission if it's material his writing to trial counsel was not put in the record i have to concede that again i don't know under the threat of standard that that the divine nature of the question is fat things are most material to a forever request in the middle of trial that's correct but i don't know if that if the question showed that ok if you can self represent now we're going to have a continual request for a continuance to demand that she that she resume testifying and so forth well there was no request for a continuance and this is one of those rare cases where next that i mean that if and i don't know that the record supports that and the reason i say that is because mr harland was a defendant who he wanted to if he was going to do something it would be it would have to be get her back on the stand and let me do my thing well there was plenty of trial left there were eight of nine witnesses left after once he requested to represent himself so there was plenty of trial left this isn't a case where unlike other cases he made the request on the last day of trial or there was one case where the defendant made the request that there was only two or three hours left of the trial that's not this case is st day of trial government's st witness clear request to proceed on a pro se basis i don't think there's any dispute that the request was not clear or that the request was somehow equivocal do you think we could infer from some of the questions that the court asked that really what he was trying to get at is is mr harland prepared to continue with this or the do you understand evidentiary matters  understand the elements but do you think we can infer that the court was concerned that he would have to solve the case in order to make sure that mr harland was up to speed i don't think that we can infer that because it's clear to me and i think it's clear in the record that there wouldn't have been delay because mr harland himself wanted no delay again he wanted the trial to proceed already in may and  so we don't know how the trial would have gone on had he been permitted to proceed on a pro se basis but i would submit that the record doesn't support really any idea that he would have requested to delay it please the court counsel my name is kelly sorrell and i'm here representing the united states of america the apple e in this case to address some of the questions that have already been brought up on the issue of whether mr harlan should have been allowed to se there was no request prior to trial there were requests for substitute counsel this was made on the st day of trial and while there's been a lot of emphasis on the st of nine witnesses the reality and it is reflected in the record that the st witness that testified for approximately three and that was a significant portion of this trial which was submitted to the jury by the nd day so although it was one witness of nine it was certainly a substantial portion of the trial that had been occurred how many hours of witness testimony inquiry of the mr harland asked why what questions he wanted to ask what was his issue with his trial counsel in the one question that he responded with as indicated was a discrepancy on the length of the relationship that the victim had previously said that they had been together about a year and a trial had said almost two years and that trial counsel had told mr harland he did not believe that issue was relevant that was the one issue that was raised this question about whether the victim and mr harland had written together that was actually in a discussion at the pretrial conference and it was a discussion about trial strategy and a defense witness that defendant wanted his counsel to call in  sufficient to rise to the level of a justifiable disagreement with counsel we also know that there were multiple opportunities to make a record of what his issue was and including outside the presence of the government's forever doesn't require breakdown and relationship i would agree and my position is of course of this motion was untimely because it was never made prior to the impanel men of the jury and there were opportunities if this was what he wished to represent himself there were certainly opportunities to have se if they make the request during the trial but at that point it's no longer a constitutionally protected right to perceive her say at that point it's within the trial judge's discretion and i think as the questions that the court counsel got into about what his preparation his ability to immediately proceed and assume trial responsibility i think that those questions were relevant to whether a delay was going to be necessary the trial judge just is put in a position trial of risking if  allows the defendant to proceed pro se at that point that it's not going to be an intelligent and knowing waiver of his rights council because he's indicated he was asked questions about do you know what defenses you could present and he indicated no so at that point if you allow him to proceed se that you're going to face an error because that was not until intelligent and knowing waiver of it i think we've been pretty clear that you don't have to be good to represent yourself you don't have durham to understand the rules of evidence did it because it is your choice so the district was a little thin on sort of assessing his interests and focus quite heavily on his ability to do so and i would agree with you if this if this motion had been made prior to trial then his ability to perform the trial as well as trial counsel that would not have been a relevant consideration and as long as he knowingly assumed that risk but i think the case law also indicates that part of the consideration is when you make that motion prior to trial you have time to prepare yourself to proceed pro se whereas when you make that motion in the middle of trial there is no time to go review or consider what you might want to do and what questions you're allowed to ask at that point it's ongoing they had literally taken a witness out to the hallway in order to conduct this hearing outside the presence of the jury trial so he would he had no time to prepare himself additionally but i would agree with you had the request been timely that that would have been the consideration of the court that mr harland subsequently waive that right as he did he waived his right to testify he yes is that relevant to this to this friend of inquiry i don't i don't know that it is obviously i mean he there were it suggests that he wasn't just dying to get his side of the story oh i would agree with that well ok but that would be one reason to self represent at the moment when they want an opportunity to cross examine the accuser i would agree with that as well i think is also apparently that is side of the story wasn't what he wanted to get out it was something else right and the only question that we know of is down the length of the relationship i think there's certainly a record that his attorney was advised in him that he didn't think it was in his interest to testify and he apparently chose to follow that advice though it was also clear that he had the opportunity to testify against counsel's advice if he was asked about what what the defense strategy was the or he said he didn't know the defense theory did that he was he asked about what his theory would be if he felt for presenting he was well he i don't know that he was asked specifically his spirit he was asked repeatedly about do you have ideas on defense theory and he answered very not responsible he didn't seem to even understand the question he was also asked about whether he let  is there anything in the colloquy that would confirm my suspicion that there really that the next request after he was allowed to sell for a present would be to get the user birth victim back on the stand well certainly that was the only issue that he raised was additional questions that he had for the victim so i don't think that one question counsel you said why should i pick up on the questions plural right i thought there was only one question mentioned he mentioned that he had written down the thing  risk of not being able to introduce evidence in his favor and he answered no to that as well so i think that that reflects both on maybe whether he was prepared and knew what his trial strategy would be at that point made trial so based on all of those least the th and the th of certainly held that the timeliness of the motion that impediment of the jury is an important distinction in this case i think after the trial begins as we've noted the court may grant such a motion but it may also deny it is  untimely and in this case i think the court was interested and why and whether that would be a knowing and intelligent waiver at that point alternately decided that the defendant was not pursue prepared to proceed trial and he emphasized that timing in his ruling that certainly at this point meant trial that the defendant the standard was going to be different so the counsel for the about has not addressed the other issues i think the only standard he cited as to the reasons were different and trial strategy and less contact and he preferred but neither of those are sufficient to rise to that level and necessitate that the court grant him additional substitute trial counsel in this case the counsel had cited numerous reasons for needing additional time including expert witness potential for for be evidence related to the betrayal offender and the distance of witnesses and the need to interview additional witnesses so i think that all those certainly justified the continuance and the exclusion of under the speedy trial act there are no additional questions i will take my seat and asked you to farm the verdict in th for rebuttal and now the request for new counsel issue has been opened up so it is fair game proof of ok so back back to the for a violation i just i want to be brief because the government and its brief and i think i just heard test doesn't include how many questions the defendant wishes to ask of whichever witness the quality of those questions what those questions might pertain to or not pertain to the case law clear that if a defendant wants to represent himself he can proceed at trial in front of a jury and in front of the court as a fool and maybe that's what would have happened here maybe not we don't know because the t used the wrong standard and because the wrong standard was used this court should reverse thank you thank you counsel cases