which arise from separate factual incidents both raise the intertwined issues of mr turner's mental health and his legal representation including his self representation in the two thousand and twelve case the overview of this case is that despite strong indications that mr turner was mentally ill the defense was denied a criminal justice act funds to for a psychiatric expert to pursue a defense of diminished capacity this was preceded and followed by major problems with mr turner's representation in both cases culminating after an invalid forever waiver in mr turner representing himself in the two thousand and twelve trial in a medicated highly agitated and paranoid state a sensibly believing that there was a plot to get him between the two district court judges  his former defense counsel his current advisory council the assistant united states attorney in the united states marshals the court determined without submitting this issue to the adversarial process at all that mr turn lingering that he was being manipulative that he was purposefully trying to create error and what i'd like to do is start at the root of the problem the claim that we raise in both cases which is the it was after that the liability phases before sentencing is correct that's correct that the timeline is quite complicated here but the the application by mr hartley was submitted in and thirteen which was after conviction in the two thousand and nine case so for that case he was requesting the expert for exploration of a new trial listen and for help with sentencing he also though in the application said that he was he was applying as well for the two thousand and twelve case which was pretrial at that point for the development of a potential diminished capacity defense and at that point he had only been on the case a short period of time about a month and a half and so he talked to the former defense counsel who said that he told them that mr turner's behavior had become bizarre and irrational and in his conversations in his meetings with mr turner he found that he showed certain mental emotional and mood disorders which might support a diminished capacity defense and he also mentioned he also included in that application the diagnosis of d that mr turner had received when he was a teenager and that he had been medicated at quite a high dose of medication until his arrest in the case and also that he was on some some quite strong pain medication as well i'm including at that point on oxycontin that changed i mean i think that the pain medication changed throughout the case but at that point that he made the application that he was on very strong pain medications as well and then the district court who had then on the case for longer certainly would have seen in the first trial this evidence of paranoia these the accusations that the defense lawyer had been  deliberately appointed that there'd been this one day delay in the arraignment so that that mr stewart would be deliberately appointed in order to make sure that mr turner was convicted so there already was in the in the record the showing of paranoia also the judge talked about the hypochondria that at every hearing mr turner would present a list of medical concerns that he was diabetic the he had sleep hokum second guess well because the lingering the judge absolutely has the is able to assess credibility that's certainly one of the things that judges do and there's no doubt in this case that the district court felt that mr turner w g and as the supreme court has recognized him a lingering isn't necessarily inconsistent with mental illness the district court also says this as according to my now that's the vague description of certain mentally emotional mood disorders and bizarre and irrational communications might well apply to many people recently convicted of serious crimes not merely those who may be experiencing psychiatric disorders so he didn't think based on the evidence motion my answer would be that in this case that the declaration from the defense counsel said i've spent time with him i've been meeting with him in the jails i've i've had this one on one contact with him and as defense lawyers you know we're not psychiatry's either and you know we don't know what the result of any sort of evaluation is going to be it could certainly be that a report could have come back saying this is all made up mr turner is not mentally ill at all he's just a really difficult manipulative guy but at when the defense is is submitting an affidavit saying i've spent time meeting with him i spent several hours at the jail sitting down with him i've talk to his defense lawyer who went to trial with him and we see signs of mental illness that is is strong enough to meet that the first prong of that three thousand six eight doctor records showing the diagnosis showing that he was taking adderall and a very high dose for many years for many years and then he was off the adderall exactly after he was taken into custody yes and was there ever any expiration of why he was we just contacted the m d c doctors and they said well we looked at him and we didn't see any signs of which i'm not clear what type of doctor looked at him but i mean that seems like an insufficient type of evaluation for that condition to just say he's not showing signs of it he certainly showed signs of it when he was representing himself at the trial and i think and that's the other piece of it this is that ultimately mr turner ended up representing himself at trial and the supreme court has said that in indiana the edwards that the competency standard to proceed pro se is higher than the co a hot diagnosis as it is now but also that the trick we just don't know what the results of this evaluation would have ben but our point is that there was enough presented to get the funds for the yes that's the standard and yet in this case it turns out that the defense was precluded from exploring a defense to the trial charge a defense because at that point listen the two thousand and nine case that was  concluded and so the government argues well there wasn't anything that he could use for the for sentencing it would make any difference but i think it diminished capacity can be  mitigating factor at sentencing as well and it certainly it could have been also used for a new trial motion in the two thousand and twelve case where create trial so there's no question there could have been used to develop that that claim i'd like to turn to the fr first fred a waiver was invalid and the second one mr turner did not even participate in but the government is relying on the concept of implied waiver based on united states and i just wanted to point out that the facts of sutcliffe are quite extreme a case where there were six i believe defense lawyers and each time the defendant made it absolutely impossible for the appointed counsel to represent that defendant in this case we only had one in the two thousand and twelve case only one lawyer mr stewart and then mr turner was pro se after that and he so the government as the district court offered him another counsel i guess harley so there was that there was another incident where that us records where he asked for counsel this is in the twenty twelve case i think yes he asked for  decided to appoint conflict free counsel and perhaps that would have been harley and that the court found that harley was conflict free yes i mean there was this goes back to the mental health issue that mr turner believe that mr hartley was part of this conspiracy but the other thing that happened at that hearing was that there was another lawyer there and the judge said mr levine can you take the case and he said you know yes and mr turner said i'd i'd like to have mr levine and then it turned out that mr levine was his vacation schedule didn't work with the with the schedule of the court schedule so i do think that given the that that mr turner certainly would have accepted appointed morning honors towards plans for the united states over the course of two criminal cases let me assess you quest of red very way because we don't have a lot of time did the government object to a psychiatric evaluation here or was that  is there is an important condition on that standard your honor and that is that it has to be what a reasonable defense counsel would have done on behalf of a pain client now of course any lawyer with an infinite amount of money would do all that he could for his client evaluation was necessary and here's why the argument in the application was the defendant needed those funds to prove diminished capacity but there was nothing in the record that suggested that the defendant had any type of diminished capacity at the time he committed the crimes now if his behavior after the verdict in the two thousand nine case was vaguely described by his counsel as bizarre and irrational that is not evidence that defendant was suffering from a diminished mental capacity when he committed crimes but doesn't that go to his ability to represent himself pro se in the two thousand and twelve case certainly the defendant's diminished  capacity is an issue with respect to his ability and in fact the judge recognized that by consulting the the warden and the doctors at the facility where he was being detained isn't that right that's precisely correct or ok do you think it's fair to have that decision made based upon an out of court ex parte discussion with somebody outside the court room itself without the ability of the defense or anybody else to even examine those communications and those conclusions that the judge relied on to to determine that he was competent to proceed during the trial and i'm only talking about two thousand talked about this yes i do your honor i believe the district court judge would operated well within his discretion in relying on reports that he received from n b c l a officials including reports of at least two psychological examinations that were conducted by officials at and u c l a the district court is not required to conduct it to submit every one of defendants medical purported medical needs to an evidentiary hearing maybe not everyone but one that goes to the heart of his ability to proceed pro se to defend himself in a very complicated case you think well no your honor i because i don't think that the think i think we can all agree that is sometimes overused but he was on adderall for many years of very high doses that are all doesn't that indicate to you that taking being taken off that adorably should have been examined the effects of being taken off adderall after all those years and and and and what that might mean to somebody with a d h the i'm not sure that the premise that your honour's suggested is correct i don't know that the dosage that he was given of adderall was a particularly high or particularly low why don't you know they were just out of the record did the judge now did the judge make any inquiry as to what that meant as to the dosage of adderall i do know the defendant did not transition directly off of that or all either the defendant in the record does say that he was given another drug for a period of time that it had slightly it was slightly less effective for him and that after that he was removed from adderall but i do think the judge was entitled to rely on the reports of trained professionals at the end u c l a who were telling him this defendant is showing signs of a lingering he's not exhibiting signs of a d t h t he doesn't require the type of medication that he suggests that he needs so certainly i think it was well within the district judge judgment to make that type of decision based on the information he was receiving from reliable sources another thing to keep in mind is that throughout the course of these two trials the defendant had repeatedly shown himself to be an unreliable source of information and one instance that is plain in the record is when he lied to the district court about having been abused by prison and prison guards and when  may or may not have known but that instance was recorded in the district court was shown that recording and was able to determine that had in fact lied to the court about his treatment by prison officials now these adverse credibility determination allowed to carry forward into his decision making when it comes to any medical treatment the may or may not be needed by the defendant i would like to also address your honor's  in the two thousand and twelve case and i think it's important here to make this point which is that a defendant can proceed to trial either with retained counsel with appointed counsel or he can go it alone and in this case defendant was given repeated opportunities to retain counsel in the two thousand and twelve case in may of two thousand and thirteen he requested a thirty day continuance to retain counsel he never did in june of that year he said told the court correctness of the district court's ultimate decision to allow defendant to proceed process a after he rejected appointed counsel or the point of this is that the district court gave the defendant ample opportunity to proceed what was the point of that i've the point of letting the court know about that background is because that is what was in the court's mind when it administered the ferrara colloquy the defendant ok that's that's that's interesting but what actual for wherever no i disagree on or there was there was a valid frett a waiver on july in july of two thousand and thirteen to defend the district court properly administered ferrata informed defendant council which in the context of having repeatedly requested retained counsel how can saying that i don't want to represent myself waiver it does when you put that conduct in context with his conduct on july twenty second and july twenty fifth of that year where the district court said you may have mr harley as your counsel he is conflict free and the defendant said  i i'm going to reject him as a point count so so opposing counsel says at the incident in i guess in july where he rejected the harley and the court said ok i find that you've waived  is whether there was an implied waiver did the defendant after having been properly administered freida warnings by his conduct demonstrate that he would not proceed with appointed counsel and that's precisely what the defendant did in this case it's clear charges against him with respect to the july two thousand and twelve case no he does not your honor ok but i don't believe that he needs to say that he understands them in order for the court to perce mistaken but i believe if you say i understand no but that's different from saying i don't understand but what matters for forever those that he needs to say i do understand if he said if he says anything else like you know  god bless america you know it doesn't help what what you need is yes i understand if he does say that it seems to me this judge can just go on to the next step and say ok i'll tell you the next thing and that has to be some effort to explain and say wife to lunch on the stand isn't isn't that how things work surely not or lying there and then just different but these are complicated charges isn't highly possible that he didn't understand i sometimes look at these things and don't understand then what i do is i go back into the them step by step and try to understand them and even then i don't always understand them so you i don't see how you can stand there and argue that one pass by judge or explain the charges and failing to get the correct answer on the further that yes i understand which is the usual answer because usually they want to represent themselves   i just want to make sure that in fact the justice farm is taking the position that when the judge gets a no or no answer saying yes i understand the charges that that is sufficient for violence  so that's a different scenario on or you're describing a scenario that's not occur in this case in this case the defendant did not say i don't understand please explain it to no he said i want to lawyer i want to lawyer which is totally the opposite of the forever proceeding yes and comment you want me or my my question yes did the judge ever make a finding that the defendant a benefaction asked yes i believe that that finding is implied in the judge's determination that he had properly administered for it but he did not express  believe that you are no i don't think he said that in the context of the conflict our break down in the court thought that was for purposes of never going to trial yes i that i can recall whether there was an actual administration of right away for but i believe your characterization of the case is correct which is that i believe after six or seven attorneys were appointed for the defendant not case defendant having fired them all or those attorneys have been having asked to withdraw the district court made the determination that they defend it was engaged in that contact conduct for in those circumstances you don't need a for a waiver that's an exception for courts having fully in more than once or twice defendant something arrests and consequences in defending himself without counsel and having informed of any of the elements of crime of which he is accused as well as a potential penalties the court that he has been told the nature of the crime and the penalties tucker it sounds like that is correct your honor and that was also the case in turner's case that he that i think that the the point is that he was informed i don't know that the but what you agree that just being informed is not enough in the inform the defendant of what was going on i think and the reason that is the case is that otherwise a defendant could filibuster a trial by refusing to answer the district judge's questions at a friday proceeding practicalities of being a judge and those circumstances understanding that a reading of these cases that would allow the defendant not to answer during a frantic call and thus prevent trial from moving forward does not seem to be what the supreme court has in i just wanted to make a couple of brief points and one is just to point out that judge selma who is taking the threat away for where mr turner did not participate as well was under the impression that there had been a previous val the case and so he was not the district court he took that and so the finding that he made that day was ok this this waiver didn't happen but that doesn't take away the fact that there was this earlier ballot waiver well we all now know looking back at that earlier waiver that that waiver wasn't valid and this one of course wasn't even close to being valid i'd also just like to say that defend it would be appointed a lawyer and then the defendant would do something incredibly extreme like file a lawsuit or threatened threaten the lawyer and so lawyer after lawyer had to conflict off saying you know i've been you know the  defendant i think in one case he was forcing the lawyer to go to trial unprepared because he wanted to raise and i claim this happened six times and so sutcliffe you know is on the books and you know i accept that but this case is not that case where mr turner was saying i want appointed counsel when he was offered an appointed counsel who was in the court and he said yeah i'll take him and then it turned out that he couldn't do the case i understand that there's there was this you know confusion with judge with rob harley about whether he would accept rob harley and he insisted that properly was part of this conspiracy with the district court that that ties into the mental health issue but the default in this case has to be that the defendant ends up with appointed counsel even if that the defendant isn't thrilled about having that appointed counsel but when we don't have a fred a waiver that's what we have to do and the only other point i wanted to make was about the timely application about the showing that there was diminished capacity at the time of the offense because that was one of the  one of the problems that the district court judge had with that there is you know there is the facts of the case cases themselves and and certainly mr turner's behavior showed this sort of delusional thinking a lot of that what the prosecutor was talking about with the the repeated continuances to retain counsel and there was a quite a bit of  delusion going on and a belief that the things were going to happen that they weren't grounded in reality and that was there at in the actual charges themselves in the p s r there was the there's