merely solely within the purview of the defendant so both mccoy and garza acknowledge again the supreme court's long held holding that it's only a defendant can decide whether to plead guilty only a defendant can decide whether or not to waive a jury trial only a defendant and not his lawyer can decide whether or not to testify in his own behalf and only a defendant can decide whether or not he will  i think both the court and garza stand for the proposition that anytime someone is deprived of this right that they can bring an independent claim and have it heard without regard to law as a whole requires a contemporaneous assertion of the right to testify at the trial certainly that's what the illinois court said in this case that the trial record was silent and that mr hartsfield af words self serving but i don't i don't believe that illinois law requires that as a whole but if you look past even mccoy and garza to the u s supreme court's decision and rock versus arkansas initially couldn't remember all the events surrounding the alleged offense and the arc and so that person underwent hypnosis her testimony her potential testify in her own behalf ms passing and i can ask you a question that may be similar to what judge roaders question on a frame in a little bit differently and just to get your reaction to it and that is you do you agree though that we should proceed here by analyzing mr hartsfield claim within the framework of strickland in other words we should ask a two prong question was there deficient performance as a result of coun as mr hartsfield says usurping his right to testify and then if we answer that question yes proceed to pronk to and ask whether that right being usurped caused him prejudice is are the is that the right finally tell us that where the claim is that a defendant has been deprived of a right to make a decision that works only has to then there's no need to show any prejudice no i i think you're you're well spoken on that ok but what i want to focus on is exactly the claim that mr hartsfield is making ok mr hartsfield is saying that he was deprived of his right to testify at trial because of what something his counsel did write yes and you told him to be quiet told him to await this opportunity later on in the trial that never came in because he as the individual that's advancing the claim is pointing to actions that he believes are deficient from his counsel my question is why shouldn't we evaluate that under strickland well because  ineffective assistance of however and both mr hartsfield three in the court and his and his petition for leave to appeal to the illinois supreme court he brought a freestanding claim that need to show prejudice just because of the nature of the error that we have here but i would go on to say that mr hartsfield can show prejudice under under it and i don't believe that the prejudice that he needs to show is necessarily you know that he would have said x y z and the jury would have seen things differently the prejudice is that he wanted to that shows prejudice in and of itself and then if you want to take a look at the evidence against mr hurd you you also have to see that there is prejudice here and that there was no direct evidence against him no bullets no no fingerprints nothing connecting him physically took this crime no physical other there was no eyewitness to the shooting however there were people who claimed that they were where the deceased person was they didn't hear anyone do any sort of shooting and the deceased was there in that room to their knowledge from four am they heard nothing during that entire sing as well so all of those things so that the evidence in this case was not extremely strong against mr and he he could show prejudice response and i don't want to interrupt the conviction state which i think there are two two prongs to the answer the st would be at this stage in the hay vs proceeding it's not going to be that question of what was the what was the best case scenario it's not going to be a question of what ultimately do we think courts should have done it is has the united states supreme court said that that's something the state court has to an assertion of it based upon this idea that counsel did something to stop you there is a way to get that get to that and that would be through the in effect in its claim and if that's also barred because there hasn't been an  of that ineffectiveness or something like that there would be things like the plain error doctrine and other doctrines to get you past that forfeiture instrument and let me let me ask i think what i think of as a related question and i'm i'm troubled by this a bit is it the states is is the contemporaneous object and requirement let's just call it that ok is that rooted in illinois law or in some aspect of the federal constitution in your view in my view you know and will be ok and so if it's illinois if illinois law is the source of the obligation think practically about what illinois law is requiring of an individual in hartsfield situation hartsfield as he said as he said in the affidavit informed as counsel of the right that he wanted to testify council told them keep quiet for now us and later on the trial judge will offer you an opportunity one that never came so it is an illinois law imposing on a criminal defendant an obligation to do exactly what to stand up in the courtroom and say judge i want to testify to write a note to the trial judge trying to be very practical here what what persists lee is the obligation that illinois law is to is imposing upon an individual in mr hartsfield circumstance my understanding is that it would be very fact specific your honor so and i believe i've given you the facts etc so in this case i think there would be an argument that he was required to say something if not a no could have supplies there is a robust force structure that's right are you not concerned about an unconstitutional condition i mean he you're going to let me let me give you an absolutely absurd example ok that we would all agree is unconstitutional suppose suppose some state required a defendant to stand up and clap if he wished to testify everyone on the planet would say that's unconstitutional that scale requirement in so what i'm worried about here is illinois law requiring somebody not trained in the law facing something very serious to just stand up in the middle of his trial in say judge i'm not sure what's going on here but i want to stops a defendant from standing up and assert that does not stop the defendant from a note or a letter to the judge after which is frequently what has been you think of the reality of what you're saying right now or your honor that's how  almost any ineffectiveness a claim ineffectiveness claim comes to the attention of the court it would have to be brought up by defendant at some point and so to say that in this instance different because he was stopped by his attorney at one point does not explain why it was not brought up later on in the press i just i don't have a difficulty with the practical what's he supposed to do say i know you told me to shut up give me a piece of paper i'm writing and letter to the judge you know i don't mean during trial your honor i believe that after a trial in a post trial motion if something was done a letter could have been put in each i mean it's tough i mean he's and even in it does where trial if the defendant brings up ideas of ineffectiveness he's allowed to bring that up for the court and there's a preliminary hearing and i don't know what we'd like to resolve it but i just encourage the state to think how think long and hard about how much you want to push this contemporaneous objection required and it is important to note your honor that the trot the state courts have made it clear that they would prefer that the trial court actually do admonitions admonishments on the record this is just not a case where it happened and because we are in a b s this means that we're not asking what are best practices we have to ask what is the supreme court said to have but you have a post conviction opinion here right yes that is in the in in the supplemental appendix it is denying post conviction relief on the failure to contemporaneous object that's one ground yes or right in this court has said that that is  unable under the hades roof it may not be philosophically have in mind thompson yes your honor because that's that is the position we are in in these proceedings we are in hades this is not a place to make new laws can't ignore it all comes back to the fact that there is not been a united states supreme court opinion that addresses whether counsel can affect defendant's right to testify every case by the supreme court about the right to testify has a better about either the trial court taking action or not taking action the prosecutor doing something or the state itself passing a law that prevents because of that the to the conduct council where it's much more clear the council saying no i stopped him because i think that would be a different ineffectiveness slightly different and it would be addressed as such but even if we put thompson aside in the fact that while it may not be the most satisfying conclusion is what a b s requires even if we look to the actual question of the claim itself as part of the state there's a exception for when there's only one exception i can think of for one that's not the case and that's it your counsel appointed by state but that doesn't get you automatically to the direct claim the united states supreme court has set up its own framework for dealing with her counsel is affecting the defendant's rights and that's the strickland framework so what you're saying it as sadness is forget this whole dialogue we were having about the contemporaneous objection reasonable it was a reasonable pinion and st it should be pointed out reasonable or not it doesn't contradict the united states supreme court the united states supreme court has not put up any opinion that says how courts are supposed to deal with a claim like this and because it doesn't contradict and it clearly established law again maybe it's really cannot result but we don't even need this court doesn't need to get deterred determination of what prejudice standards actually applies because under either standard it's clear that petitioner cannot show prejudice in effect on the council moment before spoke that the fact that he says he was  is a reasonable probability that but for the counsel's actions there would have been a different outcome or it's if there was a stand shoulder injury sect to give to the story i want to make sure i don't get that wrong too the jury's verdict now that means whatever this court's decision is on what the proper prejudice sandor is it's a question of would the petitioners propose testimony of change the jury's verdict and the proposed testimony simply i did not commit the murder i was driving along by myself this is not adding any to anything to what the jury already knew the jury knowing my side actually he said i think what he said recently went to see another girlfriend in chicago your honor the affidavit says he went to see the other girlfriend or i believe it says he went to chicago attempted to call the other girlfriends that could not get ahold of her and so it still while he gives a motive for going towards chicago there is nothing that could be corroborated there are no details beyond i was driving alone making phone calls which was affirmative rebutted by the denial of guilt which is not different from what the jury knew that he was pleading not guilty because he was there having a criminal trial it does nothing to undercut with any thing more than his self serving and detailed account of the two witness saw him car head back to where the victim was later found murdered it does nothing to confront the witnesses who said he made a somewhat incriminating statements after the fact whether that's threatening one of the witnesses as he dropped her off at home or bringing up apropos of nothing that if you ever went to jail for murder it would basically brought up to his st girlfriend that if he ever went to jail for murder i believe he said he would kill himself or something  disposed of so all of that evidence is not undone by his is uncorroborated and generic statement that i didn't do it i was off by myself under either brec strickland that does not establish prejudice so this court does not even need to get that decision although if one were to look at mccoy and course that they would see there is a clear distinction made by the courts with these autonomy cases and it's if the trial court doesn't  there is a considerable body of illinois law saying is that the illinois courts the trial courts are urged to admonish the defense that he has a right to testify