your honors we request that you reverse the district court and remand for a new trial for three main reasons first that the district court of used its discretion and denying mr walker appointment accounts second that it also abused its discretion in holding the trial by video but third and most importantly even though these two errors are independently grounds for reversal the cumulative effect of these errors and a host of smaller errors was enough to deny mr walker a fair trial i'd like to turn to the point of counsel issue first because it's what happened first and because it effected the rest of the trial the district court on mr's a mr walker's application for appointment of counsel correctly pointed to the ri which this court set for the standard in which the court used to balance the capabilities of the plaintiff to litigate his own case against the complexity of the case but it implied that standard wrong the district court's consideration of mr walker's capabilities for instance was essentially no more than an account of the complexity of the case they said he this case is simple he'll know who to call he was there he saw this isn't an issue of his capabilities his capabilities or what he raised his first motion for counsel and expanded on in his second motion for counsel he has a full scale i q of seventy six he has a history of mental health treatment and in addition to these internal faults they were extra all false as well he's a prisoner sitting in a jail cell with only access to the law library ones that mean that every prisoner who brings a civil case is and title to the critic council absolutely not your honor but it doesn't weigh in that favor and these also continued as as the case went on it was harder and harder for mr walker to have access to the legal documents he was looking for even to the point where he'll be chair of every prisoner civil case right so i'm just trying to figure out what the line is here if if the seventh circuit has not said that and every civil case brought by a prisoner the prisoner as entitled to the kind of counsel which walker looked to this record and we don't expect the district court at that point to be doing miles and miles of research on its own to figure that out but by the end of the case it should have become apparent to the district court that this was not an every day case mr walker's case made it to trial a nine hundred eighty three action of a civil rights claim brought by a pro se prisoner made it to trial this is not something that a district court faces on an every day basis is that a precedent for an obligation on the part of the district court to re evaluate its decision over the course of the proceedings and say to us hansei now i think counsel's appropriate or now i think it's hypocritical as opposed to just a line and making the decision at the beginning based on that valuable information to the judge and then providing more reasons each time he wasn't simply renewing his motion he was renewing his motion with additional evidence for the different things point to and the court does have to take those america those motions on the merits it's not allowed to simply repeat the boilerplate and say we did i do you counsel will continue to not deny you counsel for instance mr walker's i q was not present in that first moment and that was that it when mr walker talked about the issues that had been going on during discover those weren't apparent at the start of the case for instance or to it what kind of issues though the biggest issue your honor is that mr walker wanted the defendants to produce a video of the hallway at the time of the incident the defendant's delayed the is no concrete video retention policy at the prison so it it and maybe a spoliation issue it may have simply been taped over but what the district court did not do was catch mr walker's phrasing in the request he was looking for a video of the hallway by the time to this recorded them they asked for a video of the incident which allowed the defendants to testify no video exists because under the d immediately and there and therefore basically had litigation hold on everything that or at least gotten the adverse inference that at least gotten to tell the jury there's no video for you but they didn't keep the video and i want you to think about what that means this went to a jury trial so there's this issue of attempting to convince the jury that this is not something that an everyday pro se prisoner faces while preparing for oral argument for instance we looked at the number of these cases that actually happened and it's right around one percent of the one nine hundred eighty three actions make it to trial now this isn't pro se nine hundred eighty three actions that one percent number even includes those prisoners that are represented by counsel was also filing motion after motion saying i don't have any legal materials i want to be final pretrial conferences just just a week before trial one of the things the judge baker did was ordered the defense lawyers to look into getting him its legal materials back so that that's the burden that he was dealing with well trial it was him it was segregation this entire time yes and as much as we can understand that's true of the majority of the prisoners that  it is correct isn't it that the district court at one point did appoint counsel for him mr walker found the counsel mr walker at the part of his original motion for counsel he contacted a host of legal clinics he contacted kirkland ellis who had represented him in a previous case and he kind of actually got in touch with harold hirshman that appointment didn't work out because of the records as you're inside irreconcilable differences we've talked to mr walker about it but unfortunately  it's covered by privilege and we haven't had the chance to ask him to waive that but the district court did not provide mr walker with that counsel mr walker found his own counsel and the despite had the benefit  it for possibly as much as much as a few hours your honor mr olson did you ever enter an appearance he entered an appearance and then later in that same pretrial conference dissolved his side representation of mr i would like to turn to this video issue because the entire trial is conducted over a video conference and similarly as to the appointment of counsel issued the district court pointed to the correct case they said it's stone it's applied most recently imperato but the standard again was a balancing standard issued by this court that the district court didn't essentially balance out it asks the district court to balance essentially the harm of bringing the prisoner to court whether it be cost whether it be danger against the harm to the prisoner of not being able to present his case in person now this harm factor mr walker's disciplinary record received extensive treatment in the district court's order and we have knowledge that the district court is fully allowed to look at one factor and be more persuaded than that by that of the others we even acknowledge that not every factor needs to receive mentioned there's a factor in the stoning where you for instance about the likelihood of just postponing trial until the prisoner gets out of prison the fact that the district court mentioned that or didn't mention that shouldn't play a role in whether or not it properly used  discretion but when it didn't properly considers the harm to mr walker of having to attempt to present this case by video having to manage not only the live trial which was exceedingly difficult for mr walker but to manage it over a video screen where he had to make himself clear he had to not only with the judge to consider that right because the judge said that the job probably be able to see him better on the video screen then it would if he intelligibility i would argue is is more an issue a being heard but also the court room has a large video screen and that's the language in the order judge meyer stops court this case was transferred to judge baker who never by a criminal trial probably just placed at one point by the possible appointment impending of mr hershman just placed again by the fact that a key defendant blundell french was on vacation during the trial and wouldn't be available and the final displacement appears to be because the video technology either at pontiac or the courtroom courtroom was not available of the day and question i don't know from the records it's  it today other than the ex and other than the extent to which his lack of history in the case shows that he should have taken a look now that the video technology was different now that the courtroom is different and now that the judge was different he should have taken a look and made an order there for instance judge meyer scott's order includes a possible curative its structure to avoid prejudice saying they'll tell the jury that is the reason walker's testifying by video is about cost that instruction never may please the court my name is frank just shot and i represent the defendants this court should affirm the judgments on the jury's verdict in favor of the defendants because the district court validly exercised its discretion to deny walker's or quote requests to recruit coun and to conduct a trial by video conference in addition walker received a fair trial and his assertions of plain and cumulative error failed to meet either of those exacting standards first the district court validly exercised its discretion to deny walker or cross for counsel because it applied the correct legal standard and reasonably concluded on the evidence that was before it that walker could proceed pro se are you aware of the recent case of james vs eli yes i did look at  looked at it did you read it yes ok did you read judge flounce comment that the complexity of the case increases and competence decreases as the case proceeds to the advance kind of the exact same thing actually as it each order the court accounted for the stage and litigations which the case had proceeded and i what i want to really draw the court's attention to is the denials of the fifth and sixth request the final two  recognized that the case was going to go to trial and that it would request or it would attempt to recruit counsel to represent walker at trial it was not until the sixth and final denial of the request for counsel that the court said  well walker doesn't need counsel at trial and the difference is that in the interim the court had the opportunity to observe walker's performance at a couple of video conference pretrial hearings and the court pointed to that in its order denying the sixth and final request for counsel so what this shows is that first of all unlike the the court did not simply give boilerplate reasons for why and to deny counsel the court considered new information as it came before it here the the observations that the court had of walker's abilities and that the court did take into account that things get harder when you get to trial and that there are certain make or break moments one of them being trial where where perhaps counsel could be more important that i mean the record shows that the court had every intention of recruiting counsel at the time of the fifth request and it wasn't until the sixth on that the court decided that  counsel's unnecessary and of course the court was making this decision on the basis of walker's personal capabilities but in the context of the difficulty of litigating this case and the court correctly concluded that this was not a particularly difficult case to litigate the law was straightforward the facts were uncomplicated walker had personal knowledge of the facts that gave rise to his can to his claims there was no medical evidence involved in this claim was no need for expert testimony at trial walker presented his own testimony elicited supporting testimony from other witnesses the defendants and their witnesses testified to the contrary in the jury figured out who was telling the truth  and so when you look at the way that the court considered each and every request the first request was filed along with the complaint and so at that point the court did rely fairly heavily on the simplicity or complexity of the claim the quality of the complaints in its litigation hystrix that's really all the court had in the second request walker submitted evidence in support of his earlier assertion that you had intellectual limitations the court considered that  its denial of the second and third request and explicitly mentioned it again in a believe the denial of the sixth request the court was aware that that walker was receiving the help of a jailhouse lawyer through the early portions of the proceedings the court specifically mentioned that in its denial of the second and third requests and not on the fifth request saying that while whether or not you have a jailhouse lawyer doesn't prove one way or another whether you're competent but to this point at least walker has been able to identify and  the same thing as if it's a preacher he says there and i guess easier to do all everything by video well that the free trial conferences were by that he or conference just as the trial was so the court did have the opportunities to see how walker was able to operate in a video set so maybe that that given that that was the with the base it on he said because he's already been on video and did ok well then it seems to me that that's because there was some misunderstanding and said i can't see him and did you hear what he said and that sort of thing the judge is trying to reside over this from where he is correct or under the court i think the only  reasonable way to interpret and compare the fifth the trial the fifth request in the sixth request is to say that what changed the court's mind was her ability to observe the way that walker comported himself during those video conference trials because otherwise nothing else to change between the fifth in the six john myers prop made it correct on to judge baker tried the case judge baker he never had that opportunity right no judge baker tried the case and although  counsel talked about how the the trial you know that the location of the trial had moved there was evidence in the record during the trial that they had a very large video screen at judge baker's courtroom as well judge baker was familiar with the technology he had experience conducting video never had he didn't have the benefit the judge miers had that you're just talking about witnessing or looking at the plaintiff here and how he behaved himself right at at as video trials some witnesses mumbles on lawyers don't talk loud enough so there's no indication that that the quality of the trial was any worse here as a result of the video technology say about the discovery  discovery well the discovery issue actually shows why i counsel was not necessary during that part in litigation because walker successfully brought the issue to the court's attention at walker subset successfully obtained orders from the court directing the defendants to response was discovery requests and produce specific evidence and the reason that the video was not produced is because there was no video that's what the defendants explained in their response to so the  request that the video he was seeking just didn't exist that there was no specific video policy and in documents but there was a video camera at in the hallway at the time of the incident right produce and thereby freeze all of the evidence that might support your client's clay right yes but as as we argued in our response to walker's motion in limine each seeking a negative inference instruction this is docking one thirty six  there by the time he had even filed the complaint there was no video for us to discover turnover and moreover the defendants in this the parties to this case had no control over whether or not the video existed or was discovery request in your honor that that type of problem is one that is faced by every plaintiff who's an inmate and as this court's explained those sort of normal burdens that that plaintiffs face cannot be enough to require the recruitment of counsel otherwise you would have counsel being recruited in every case and that's why we know when when when a defendant in a prison setting like this says evidence that should exist doesn't exist what do you do about that you take the deposition of everybody who has knowledge of whether or not that's correct right was he able to do that that there's nothing i guess that would prevent him from doing it but the deposition again the evidence in the records suggest that these videos that this video was kept because the policy depends on the facility it's appends on the camera that these videos are kept for certain amounts and then they're automatically taped over we pointed out in our response emotion litany that this video if it even existed would have existed for roughly fifteen days and so would not have been the type of thing that that we could have even handed over so the discovery issue was resolved by the magistrate judge and it's just another example of the cork ensuring that during the discovery face plaintiff walker was got you know everything pretty much the was looking for it went on in a way that was effective and then the court recognized that there was a difference when things go to trial and the court so the core initially was ready willing and able to appoint counsel recruit counsel sorry and it was only after she had the opportunity to the way that he performed in a in a similar setting that the court decided the council was unnecessary and so given all that the court's not abused its discretion when it's and i counsel that even if the court had abused its discretion reversal still would not be warranted but there is something about the jury and the board are the idea of having some depends on the judge having some communication where you see that you're e and you're talking to you get pro se plaintiff conduct at the trial five video but the defendants and their lawyers participated in that by the in the trial in person here everybody operated by video and so you didn't have that sort of asymmetry that you had in karate and their words there was a question here about whether one of the witnesses was being prompted it was it was there was one moment while i believe it was officer schmaltz was talking about the physical layout of gallery one that walker claimed that  mouthing something to him and the court immediately intervened and said that you know that you should be doing that stop if you are so it was a very minor moment that didn't have but a moment and and have had many other moments might there  how do you justify the closing argument where they the press the defense lawyer said that pontiac houses the worst of the worst well some can you defend that well there were there was some relevance to some of the argument about how gallery one in particular was used for four inmates who were being moved there for disciplinary reasons that was a big part of the trial under either version of events walker was moved from gallery five to gallery one for disciplinary reasons that he would need to have been shackled but even if that you know comments about the worst the worst is improper it doesn't rise to the level of plain air as to that even walker put forward that made it very clear that he was i mean this was a prisoner case and everybody knew that he was moved to gallery one that they disagreed over the reason why but i see my time's up saying i oh it's so much different i know it's a civil case but it's different than the trial and even there are before the judge says or when you've got withers at six or eight whatever they've put sea juries with nowadays that's whole different deal they're making the decision and i and i know in some federal course we've back when i did the state court was great always always could do the border myself and i love doing that you know we have a great when the district court made its decision on the video conference was acting well within the guidance that was given to it from priority and forms and there was no question that walker posed a compelling security risk and the court took sufficient precautions to make sure that walker could try his case by video in it as just about as well as he could have and person thank you thank you thank there were issues both of the judge in the court order comments of that they could not hear or understand what walker was saying at multiple points second we'd like to discuss the abuse of discretion standard we understand that this is a high bar but it's m here because this case is unique both procedurally and subsuming because first opposing counsel says that this would be every case that's simply not true it's not just that he's a pro se prisoner plaintive this just isn't an employment or medical malpractise suit  special kind of pro said case not only that but as my co counsel brought up there are roughly eighteen thousand of this type of trial each year and only one hundred sixty nine of them actually go to a jury trial it's to produce trip per year and that would include everybody who was able to afford their lawyer that would include everybody who didn't want a lawyer and that would include everybody who doesn't meet the standard that they have to search for there comes a minute or interaction of that as i want to make sure to get to this point my concern here is prejudice because you have to show not just that the district court abused its discretion and not giving him counsel the i recent cases about this issue have pointed to some something that really would have made a difference some sound failing or a council could really help so what is what is yours could you be a little bit more specific than trying to be as to the prejudice we've we have a few reasons why first he was unable to get discovery as he was also unable to get the only man prisoner witness the judge claimed that it would be duplicative testimony which goes to credibility additionally as opposing counsel said the judge judge baker did scold the coaching of witnesses however there were no teeth there was no effective way for him to see what was going on and the only people in the room that were judging him were the defendants the prison guards and not only that but if if well i'd like to move back to the substantive an pruitt because the court did correctly identify that legal standard and they did not apply it because pruitt's asking whether walker was capable of it if the case the fact that they said it was simple isn't actually investigating with a factor say and if you look to them for these reasons we hope that you reverse thank you counsel the case is taken