teleconference the sockets on that one so there they have a rearrangement is out that's technically what it is right arraignment and i guess i'm sums the way i would have looked at the case is i would have said boies really hard to blame the judge for doing that i mean at some point you've got to decide there's going to be a trial if there's going to be a plea in a speedy trial act requires that image a lot of reasons you have to do something so that th rearrangement i think i just can't see how that's problematic and i really would say to the extent there is a problem here it was initiated by the prosecutor i don't think it's fair to hughes judge banning of doing this  negotiation i think i would guess from the record he was caught by surprise by what happened when the prosecutor volunteered well we don't have to have the police put a plea waiver in that i mean you know then it's it seems to me arguably he should have said ok you guys can have the courtroom i'm out of here i think i understand that way of thinking about it but i'm really struggling with anything judge bunning did wrong up to that first comment by the prosecutor which suggests to me the prosecutor made the initial ok you're allowed to decide whether to go to trial or have a plea that's not that's a neutral they the context of the took it was it was a hearing to discuss with them i took it a little bit further looking at everything else that  case he could have extended the pretrial hearing today he could also done the one thing i know for sure your client didn't want which is to say ok trial's next week actually he can then hit the gavel and walked out and that would be exactly what you kind didn't want well not necessarily i can tell you this my client felt like he was pressured into making the split was now at the record says the record the judge says three different times look nobody trying to muscle you in anything you have a right to go to trial at one point he asked your client if you had enough time to consider in your client says yes well actually no that's not what he said what he said was had you had enough time he said not really and then the judge chatted on and said i'm trying to get a bottom  s true sometimes not sometimes very often come of the fence do have a tough choice it's it is just a tough choice and they're both bad like no one wants to go to trial no want to be tried and found guilty of a crime bad choice a no one wants to plead guilty to a crime and go to jail by choice b so what why is that not a neutral accurate statement of the situation they are both tough choices and that's why you really have to think carefully about what to do let's  said the prosecutors comment about the appeal whatever what happened was that the conversation shifted to focus on the appeal waiver which the prosecutor said he would strike and then the judge said very good and then the focus shifted to he said to the judge so judge it makes demps will will give the baseball cards back and then they shifted back over to look at hurting your client all the while the big point this is all hurting your client all the while well it's were mean no one can say that it wasn't good that that happened i agree with you the judge should not have stayed in the room i agree with that i do agree with that point just so you understand but i were also here trying to figure out the others no objection and didn't the baseball cards get brought up which is something hit him bring up it's often the judge brought up and that becomes a modification but there but that was not an accurate his counsel then said oh he he does care about the baseball cards but here's the thing mr so in other words that's not made up right but the problem is the narrowing of the focus limit there's a quote from the herald the steps and suggestions by judge and not just one more source of information to play to their  indications of what the judge will accept and one can only assume that they will quickly become the focal point of further discussions and that's what happened here it's not so much that this may or may not be good terms it's that they became the focal the changes and here's the thing with the timing twice i she said he had problems understanding these two different things first during the for her trip or he said i don't know what's going on in the defense attorney interrupted them it's a judge i think we have an agreement on the forfeiture then on the appeal waiver that let seems like ineffective assistance just to be clear right i mean that that's defense counsel's actions in the questions whether he was serving client but it's also participation on the appeal way the later only defense counsel can participate in plea negotiations that just that that has to be right agreed the defense counsel can but the judge participated and it's the coercive effect of the judge's participation in the play discussions that is the problem it's an argument that the defendant said he didn't know was going on and his attorney hust him up and said things in the water and the fact that the i'm not place you understand well what i'm what i'm asking is did it would seem maybe you're not making this point but that when the defendant said he didn't really know what's going on  waiver just so the forfeiture he says that the pill waiver later on down the road is pretty clear he didn't know what that really meant because when he talked about his appeal he said i'm frankly still says it today i want to kill everything i want to some appeal not federal case you know understand what a man you know understand he asked for more time and the judge chatted i'm not saying what do you need more time but you had you had a situation where the defendant was saying he didn't want to go to trial he won of a plea but he didn't he wasn't sure he wanted to plea that was being offered because he didn't want to go to jail for ever or for an extended time as he thought he would do if you took that plea so your client didn't want to plead but he also didn't want to go to trial what should the court have done on those circumstances i mean i know your argument is that the judge should have you can answer you can answer mask yes i i think what you're suggesting is in effect the defendant was filibustering the proceedings by not oh i'm not saying that he was full of busting i'm saying he he had to two conflicting goals and two conflicting choices just as to just say he was given this absence choice so but but in light of the the fact is he was conflicted he was reluctant to plea so what if anything should the court have done to manage this situation one of two things with the follow up on that go to trial boy john for further play discussions outside of this pr to the first option though that that isn't to the state that's not what he wanted that's a funny that's a funny theory of prejudice right i mean some another way of looking judge would place a question is ok fine let's say there were some problems here  we still have to figure out whether it's reversible and forget whether it's harmless airplane or just don't even think about that but he still he's talking about saying i would withdraw the police so it's really funny to think option a was good that that would that would have been a good outcome here maybe maybe the best answer is option b and that's the real answer to judge clay and that's the most effective answer is well tough luck he can't participate he should have left the room no matter what i guess the point with  trial given the percentage the resulting convictions and the percentage of resulting guilty plea is far as there's always a reason to already put it a reason to look to try to all right thank you you'll have your four minutes from  morning morning may please the court i mean stan goodman with the united states department of justice representing the apple e united states of america the district court did not impermissibly participate in the and however the defendant did not want to go to trial that much is evident but if the defendant didn't clearly agree on the record with the plea deal and  more time do for you and a solicitous way i think are just focusing on the good things but i mean done is i mean don't you think it's pretty fair for us to say that i don't think there was any it was a bad idea to have a rearrangement i don't think a single thing happened wrong and tell the prosecutor inserted this idea of getting rid of the plea waiver in other words it's starting to you can't call that anything other than a negotiation at that point and i guess just i'm really hard having a hard time understanding why the government wouldn't agree plural because the government could have said in response i mean i think in retrospect up at that government lawyer who is not you in retrospect wishes he or she had said well in light of that point it probably makes sense for us to talk a little bit outside the presence of the judge that would that would have been the right thing to do for the government lawyer i think don't you agree i mean this certainly would have made it easier and would have been a good thing to do and so if that's true don't you think do you think we should we need to say that you know once this kind of thing happens how ever capricious it is that it does happen courts need to be pretty vigilant about stepping out of it right now that that's what this is up the plane air harmless air debate but i'm just saying i would have thought we'd have gotten agreement from you on that point i think that this case is different from those cases really all the other cases in which the have participated in plea agreements whether the government has ultimately won them or not in all of those cases it was really the court that was pushing a plea deal that maybe we should say best practices is not maybe i should say it's necessarily a violation but surely best practices assuming that there was a time and the court schedule i think it would have been a good idea a best practice for the court to say should and the court yes i agree could have and probably should have said let's see if we can have half an hour to work out the details because you've come in here saying there's  agreement one way or the other he remained a neutral arbiter rather than the hobson's choice statement do you think i mean i think that's one of the arguments that that is where he seems to be putting a thumb on the scale of for a plea archery how things work in the federal court that he either does have to make a commitment to go into trial which the court is perfectly willing to do or he has to make a commitment reach the point where the court can move the case forward and i think it is an appropriate function of the district court to do is a delicate line in this instance between not participating in the  not pushing him one way or the other but still moving the case forward and getting either your trial date or your plea agreement the absence of choice by its very nature is that pushing him one way or the other  the parties attorneys were also saying no this is not a plea negotiation the parties too were trying to walk that delicate line of getting a resolution one way or the other is to how the case was going to proceed going forward that would have could have depended upon whether his lawyer was even listening to him since his lawyer wasn't necessarily always listening to him even during the  i mean so i mean the fact that no nothing was filed we wouldn't really know why that was whether it was a breakdown in communication with his lawyer or what was going on we'll of course a time sentencing several months a violation a rule of it's a very close question as you say better practice would have been probably to say look you go out in the hallway and talk about this or seems like the government strongest case on this might be more that look under the plane there are standard is just no substantial harm because he never there's nothing in the record and he ever intended to go to trial certainly on the third prong of the plane here trial and is you all if no did more than one occasion mr ushering in this instance indicated that he did not want to go to trial he was just concerned about the career offender he was wondering how the case got transferred from being a state case to the federal court when the ironies of this case is to me the real truth here is the best thing that could have happened to him in the way he was prejudice is to be able to withdraw the plea have nuclear negotiations and have judge president bunning preside over them again and get the prosecutor to get rid of more things in the police that strikes me as the most likely outcome that could help   anyway it it shows the state of mind of not being the key point of prejudice here is a plea that you should not have entered in so it seems to me definitely part of the calculation you may be right it's not dispositive but it does seem to be part of the calculation i don't necessarily disagree but having said that a sort of submit is a point of the distinction because every federal case the defendant's going to be in the position every federal case mean that that's sufficient it's a consideration sure but is it enough no it's dispositive i submit that it's not but i mean just to follow up on judge cummins point i guess it's a thought i have as well i mean i think the government's accurate when they say most of these cases where the defendant wins it really is fair to look at the transcript and say that judge is putting a hand on the scales in favor of a plea right i mean that that is clear and that is what most of the cases look like that seems to be the key theme and i think here i know you're arguing that happen but i guess what strikes me is it's hard just wonder if it's really a plane airplane emphasis on plane because it's just it's a funny case the way it happened it appeal whatever said you know he doesn't have to appeal judge we can strike it with two terms that us three i submit did not understand the judge never came back as as as it is so he had this immense pressure whenever a judge who says i got the discretion to senate you and all your choices are bad in my mind i think that's one thing one thing my permit to do that night and that's why the first by the instigation becomes a problem because he sets the venue for the participation to occur all right unless you have something basis summited and you can call the next case when you're ready