join us he will be listening to the recording and a reminder that that microphone is for recording purposes in fact that's only what it's for it's not for hapless occasion so if you could please i keep your voices up during our you know we would appreciate it i did something wrong we're incredibly lean you know how they communicate that we can all agree on that i'm sure you're right no no just counseling make him say it write him a letter he can stand up  all of those cases he is taking some affirmative step to manifest an intention to bring him to the court's attention attention however in artfully right and he or did he do that i mean he he he complained his probation officer procreation services officer for the purposes of p s i but then he stood in court silent he was even brought up in court right then depressed literally said look at page five of the baseline here's what he says and he still doesn't say anything when given the opportunity harris was also cited by people who work for the same now defunct proposition that the factual basis required and again in a year specifically mentioned word and rejected the analysis and so the cases that limited situation and i think that especially where the entire purpose of the frankel procedure again is to facilitate the spreading of record of this so that we're not dealing with this you know years or months later on post fiction or appeal as let's go right think the focus of that analysis should be on whether the claims are brought to the court's attention i get up i stop person response any sleep so something at sentencing i don't know that it's any more clear that he's spouting off or is hoping for a lower sentence versus intending to pursue this sort of avenue very very quickly so again this is a limited situation it's a statements that are being made in a document the portas fire was required by law to read and so i think that under the just under the purpose of the frankel procedure which is  all motions all manner swiftly brought through the attorney the one exception the one primary exception that exists within our criminal justice system is the crank calls area where a defendant who is complaining about who is being a claim of ineffective assistance about his attorney force the defense attorney to assert his own ineffectiveness he's permitted to do so but he's not forced to do so and so the reason for the critical inquiry the criminal procedure is that when a defendant is standing up in court orders and informing the court i had had representation the judge has to ensure that there isn't a conflict that there hasn't been a breakdown in that attorney client relationship but unless there's been that representation to the court by the defendant or by the defendant's it was a rambling it wasn't a a clear claim of ineffective assistance but that the the point in taylor was that was that it was the defendant's responsibility to make an express claim the court isn't supposed to trying to find his intent from some ambiguous that's simply ambiguous complaints of some sort that could be interpreted some way and i recognize here in the p s side the defendants complaints are more specific than they were in jail or not i'm not claiming that but what i am saying that was it was the defendant's choice to bring it to will increase prior to the end trial a judge shouldn't be expected to divine the defendant's attent to pursue a claim of infections because for all we know the defendant may have resulted from his concerns with his attorney in the interim and talk to the client because of that prohibition and so here when it with something is being pursued outside of what the defendant himself is is pursuing he where he didn't submit a note or a letter or a motion or a state so and so i think that type of questioning in the absence of a clear expressed claim of ineffective assistance could interfere with the attorney client relationship but i would note that in this case judge o'brien tried to do that because immediately after the arguments in aggravation and litigation he turned the defendant as if he wanted to say yes counsel's correct that was the ordinary statement for it do you have anything saying elocution when the defendant said no judge o'brien did something which i have never seen before in my scripts are you sure no used against him as a point thirty mm you're out i actually disagree with with bat interpretation the record certainly his statements about the case that he felt that he was wrongfully found guilty we're using air gratian because it prosecutor he doesn't know right this defendant probably doesn't know he's not the probably never heard of critical and he's now finding out the statement he made a probation officer being used against him is he going to repeat that the moment seem to be on reasonable for him to think oh i better keep my mouth i i think from we're guessing i think from judge a rights perspective i don't think that's the resolve point that he is being faced with these complaints he's been presented with this with this point he's giving the e s m it is anything to say he doesn't say anything how is the post judge o'brien supposed to know that that is the defendant's intent to pursue that given the case law with taylor errors harris county him all the cases that  phone so i'm sorry so if a defense attorney says judge my client wants to tell you something about my representation he thinks i was in fact then it's system which i think is what counsel would say is why we should be very liberal construing this we've got a situation where the trial tracking as very good reason to believe that the defendant has any complaints about household he should just stop everything and say is there something you'd like to say to me if he doesn't have anything he wants to say he'll say no and we're not but if he does and we get this out of the way and everybody's the whole system is moot because you know what what's wrong what you're i understand everything you're saying you're going to take one step back to your point doesn't want to engage in earlier made trial pretrial critical type of increase is because of the danger of interfering with the attorney general because we want to allow the attorney to have freedom to represent the defendant to the best of his or the world is again just a gun protecting the system and the other side of it i understand the point about protecting the system for the appeal certainly but ensuring that there is the the system of allowing the defendant to live events to choose what claims they are going to bring forth to the court so that we the courts aren't directing the litigation instead they are resolving the claims that are brought to it in a situation like this where there are complaints which appear in the p a s i but the defendant isn't choosing to actually bring that to the court's attention by any means that are available to him the court isn't obligated to act about it again and i recognize that the language of the admission that courts can in the situation should both those pieces crank it was not triggered if i could just clarify you're ok so the fact that the finish had made a complaint at some point through the proceedings is by itself insufficient instead the defendant has to bring his complaint whether he's done it before or not to the attention of the court you yet he has to do it by by formal motion letter note oral statement in court yes you do something to inform the court that he is complaining of his attorney's reputation if he doesn't do that personally is  claim because it wasn't presented in the proper way via procedure i think that where the where the frankel procedure again is this is your honor i reiterated where the purpose of the procedure is to fully develop these claims to promote consideration of this claim that's a quote from the illinois supreme court i think that was at that exact weekends that also respect to the point that you know this would harm the attorney client relationship you know that that wasn't really raised in any of the briefing but but even then judges often ask unprompted without anything you know do you think your attorney did a good job in representing i've read many records for that happen that's never been found i've never seen a case finding that kind of simple you know minimal increase some to interfere happened yet so you know whether there's any prejudice to it and i don't know that it's folks the attorney client relationship but it but if they didn't know that it was thrust of that case also point out that jocko specifically help quote a pro se defendant is not obligated to renew claims of ineffective assistance people you more back in two thousand and three where the defendant were after the judge already knew about the defendant's claims the state made a similar argument saying that well he stood mutely by and he didn't say anything so the judge after he had read anything in that case the that was rejected the court found that  that happened but if the prosecutor otherwise knew about this claim and brought it up i think that the fact the point was made aware i think even in that situation it would be a part but we i think but here it's clear that defendant made the claim and i think that hearing where he couldn't really do anything himself to prop you see i'm saying i think i understand what you're saying your honor i don't i think that if the risk we're talking about is maybe you know making a record that would harm him in the can somehow waive their future constitutional rights while they're not represented by counsel i think that that present many constitutional concerns in that respect that and also your honor i just i don't know how that would be that much different you know when a person you know even let's say somebody knows about frankel when they're you know when they're making that claim i don't know that they're they know whether what they're talking about really anyway they're you know they're pro se their label they're just trying to let the judge know that something's screwed up and