and the rules are generally the same here on zoom you'll each have fifteen minutes to argue the appellant will have time to reserve for rebuttal i'm going to keep time and i suggest that you do the same just you not surprised ok your honor is at this stage so preview you know when the state cases make their way to the federal courts i always feel like it's the we're at the splitting the atom stage of the case here and that the review is occurring under such a fine microscope you know now that we've had the benefit of years of time to review everything and build the cases and what it boils down to though is whether the state's determination was reasonable and  know boiling down the the the state of case law as it exists with regard to a defendant's right to choice of counsel it's arbitrariness on the trial court to have versus you know any t right that's what i meant you know i can't help but notice that would you call does the tory tactics you know there's no mention of any breakdown in communication did the supreme court just didn't mention it at all i mean how can we get by that is not important i would go for it so far mr mit that i was going to use the word of a nasty breakdown but i don't backtrack and strike that comment and say yeah i mean this is one of those cases where you have to defend an attorney that just aren't communicating at the end of the day and you know it's even persisted with the exceptional counsel that randolph hearing sam or his family intended for attorney stratton to possibly even enter his appearance as early as the preliminary hearing there was more concrete discussions of that in the january before the major trial term where it seems like as far as attorney stratton understood that's where the family intended to represent him as far as attorney stratton sat at the end of the day came down to the money i know that he was notified by the roundoff before hand that they did s the bar the bar was never sold attorney stratton admitted at that a b s hearing that he never would have you know meaningfully conducted a representation without a couple one thousand dollars that they were able to mark what rest what relevance to those after the  well that's not authentically what is sure that's what he was asking for but that's not what he would have been able to try this case on he said he needed to hire all these investigators he didn't even have discovery at the time of sentencing your honor and so i know it's hard to parse this decision that was made you know by the state court the time everything that's come out has just only reinforced the reasonable sense of the state courts conclusion and if you want to talk about the way i mean it was listless talk about the supreme court's opinion right i mean the  district court was troubled i think isn't a charitable way of saying it with the one paragraph discussion of this choice of counsel issue and quite frankly the lack of factual support under underpinning his can that the supreme court's out he has not pointed to any evidence except for these two witnesses he was able to resign at the hideous hearing to demonstrate that at the end of the day anything would have been different i mean we're going to be as gerry reeves we were going to be in the same position  i know that the court didn't really make any of the district court didn't make any determinations with regard to the merits of any of those claims and what new evidence could be presented but in talking about completeness of the record we've now developed at that hearing  trial counsel wasn't even present and i know it wasn't a typical ineffectiveness of counsel again we're talking about structure where it's not harmless errors you know when we characterize and that light but he didn't even present the trial duty which is a good ethical thing to assist their clients in any way so maybe it would have said that this breakdown was as bad as the record reflect that maybe he would have said that it wouldn't have i mean we can't know they had the opportunity during your ins like even the january well well look he wanted this thing to move fast he didn't want this lawyer and it was actually it was actually it suggested go improves you know i don't think this is i didn't was this really i should say i don't think but is this is accepted his notice without the court's permission original when the council was granted least withdraw that would be the problem of leaving you know a criminal defendant who is scheduled for trial without an attorney and obviously if he can just be attempted to was rejected by the right course for ads but having done that you're suggesting when he found out that the bar wasn't sold or he didn't get paid that he wouldn't represent him but he at that point would not be able to withdraw without the bridge permission is that correct yes but the record also demonstrates how much preparation he still would have needed to completely did say after the penalty phase i'm going to need more expert preparation medication experts do that than i would in the go innocence phase but he he he forwarded a lot of qualified statements saying notice about i was five i'll be ready to go if all these things have happened then again that goes back to he wanted to put in those that alibi wanted to conduct certain psychiatric a value but the trial court said on the on the record that it was willing to postpone the actual  kind of the time and again your honour's i just don't think this three hour delay is everything everything on the record says that that's not what it was going to take and would only further it could have put his case out months ago and prejudicing other answers th at understand your position thank you your arms i guess i don't i don't want to interrupt you if you have other things to say on this topic but you brought up this waiver or forfeit your argument must my initial question there is on the record have you actually preserved that argument seems that well go ahead i'll let you answer the question i'm sorry your honor i believe one was fairly suggested by the whole issue of this case i mean we've been talking about asylum tory tactics and the state courts were in the federal courts now and this is you know when i and i would say it was subsumed by answer announce fairly suggested and you know that's why we would be raising it our initial answer that we did file an amended proceedings i got that we raised our earliest opportunity if it wasn't if you know it was unfairly deserved i can understand that are in obviously is that you know that was fairly did judge carter have a fair opportunity to consider that argument or are we considering in the st instance he didn't he didn't really go into it in the this court opinion and i think was raised to him is right and i you know i was going kind of going to go there not that it was not brought to his attention in that manner and that proceeding thank you thank you  mr randolph's was automatically denied his th amendment right to counsel of choice at his capital trial the district court appropriately determined that the pennsylvania supreme court's opinion denying relief on his counsel of choice claim was therefore opinion sanctioned the trial judge's decision to force mr randolph to be represented by an unprepared uncommunicative openly antagonistic appointed attorney who was simultaneously running for district attorney of a neighboring county instead of granting as this court has acknowledged and incredibly brief continuance that would have permitted mr stretton to begin jury selection and represent mr randolph mr sutton to y offers an answer to that eleven way or the other but as the district court found that really doesn't make a difference in this case most if not all criminal defendants would prefer to retain their own attorney but for the fact that they can't afford one so it's hard to see what difference it would have made if mr randolph has said now stay in january when he st contacted mr stratton to the to the trial judge i would like to retain my own attorney but i can't afford to do so right now you know it was an indefinite thing at the time because as we know from the record it was his ability to retain mr stratton was determined was dependent upon his mother's attorney and his mother's ability to sell the family car just because indicated before mr sutton had entered his appearance at that point we had committed himself he wasn't going to be able to just call out saying you know sorry judge the money didn't come through for me i don't want to do this after all so there was not going to be an inability for him to do that at that point it wasn't you know again what we're looking at is what did the trial judge now at the time he rejected mr sands and her entry of appearance and at this time he rejected the continu the near to a significant burden well respectfully your honor i think that we still have to come back to that three hour delay which was ultimately what was going to be requested so none of those factors really impact on the fact that the jury was not going to be significantly dinette delayed and we actually know from the trial judge himself that impact on the jury panel wasn't part it's just a big mistake if ever you know thinking about the way the nature of the right to counsel of choice on the one hand and you know the inconvenience of the jurors or economics on the other hand and the trial court i want to stop right there it's not about that it's just don't see how that connects at all with the decision to deny a three hour delay at that point so that mr sutton can conductors selection but what about the statement that also appears in the transcript of that hearing where the prosecutor indicates that  it's witnesses had been receiving threats or being are being pressured not to testify and and and and the prosecutor is concerned that that was the real purpose of a further delay  never that it does the only thing that appears in the record about that there was no determination by the trial court or any court the back in fact was happening in the trial court certainly didn't rely on that as a reason  pennsylvania supreme court which is ultimately the operative opinion that this court is reviewing for purposes of at review certainly said nothing about that as a as a reason so again that was the prosecutor's our presentation there was no as i understand it the hearings after the fact what if any relevance today is a play in our valuation of this this issue so i think that minimal so i think to the extent that the for the hearing sort of are consistent with everything that was already on the record at that point mr welch's lack of preparedness is a total breakdown in communications all of that is consistent and the court can certainly if you have for whatever purposes it sees fit but frankly all of this was i mean all relevant facts were on the record in the pretrial hearings leading up to the continuance and so this court can can very strained relationship apparently this new attorney thomas and randolph had a pretty good relationship how does that factor into our analysis i think that that is not a particularly salient factor in this course analysis mr welch was mr randolph supported attorney he was the experienced attorney in this matter mr thomas was just a couple of years out of law school he appeared at the arraignment and then was not a part of the defense team up until entering his can basically at trial in an earlier pretrial hearing the trial judge had indicated that it would permit mr thomas to appear so long as he was going to do so voluntarily and so and on speaking terms at the beginning of trial and mr wells was ultimately the the attorney who you know cross examined all the all the common last witnesses in their in their case in chief so the fact that mr randolph had apparently a better relationship with mr thomas doesn't change his course analysis whatsoever because you know ultimately it was mr randolph counsel of choice that was that was denied it was his you know decision to be able to hire mr stratton and have him come represent him i an appropriate basis to overcome the presumption in front in favor of counsel and that's ultimately where we are the pennsylvania supreme court did not point to an appropriate basis to overcome the presumption in supported by the by the record the trial court had indicated that the jury selection process was asked in stone and even on the very morning of jury selection when mr thomas is saying to the to the short you know i spoke to mr sutton last the lack of cooperation here i really just like to highlight the january st hearing because i think that just completely undercut this notion that mr randolph was the one responsible for this breakdown in communication mr welch did not i mean this is on the record of that hearing mr watt did not even tell mr randolph that hearing was going to be happening which resulted in the trial judge essentially saying i'm not going to i'm not going to require him to be here and that was a motions hearing where substantive discussion on the motion that mr welch had filed by that point was happening later and i wasn't present for it because mr wells didn't tell him about it at the end of that hearing mr welch revealed privileged communication between himself and mr randolph apropos of nothing and then made an unsolicited comment about how he you know writes down his reasons for not doing things as for mr randolph in case you want to know causing any of that breakdown in communication at that stage and so his his comments about mr welch's lack of communication and lack of preparation frankly eminently reasonable and there's absolutely no reason to believe at one point in i believe at one point at least at one point that the trial judge did say that i i really think that it's mr around office trying to let delay here but again as the as the court no mr randolph had heatedly suggested that he wanted to go to trial as promptly as possible even as mr stratton was entering his appearance or attempting to mr randolph was saying i just want to short continuance i still want this trial to go forward as quickly as possible so there's really you know if that if the pennsylvania supreme court had relied on dilatory tactics which which they didn't there would be no real strong basis  entry have appearance until you know as we know shortly before trial and so it's it's hard to see how mr randolph would have been you know on notice of the learning of needing to accomplish this sooner and certainly we know that mr stratton entered his appearance immediately upon being retained and having the finances come through his satisfactions well he tried right but  was denied so he the morning of jury selection mr thomas basically who is present in the courtroom at that time says that he spoke to mr stretton the night the night before  there was also a conversation that was off the record on friday but was put on the record that same morning about discussion between mr thomas and the trial judge about this and so but that morning stated it was only mentioning and as of as to the extent it affirmed prior clearly established federal law i don't view it as changing the counsel of choice inquiry at all it's still the presumption of coun so i really don't see it about the senate characterizes the the earth structure so two things your honor st the pennsylvania supreme court just found no error so it didn't make any sort of prejudice determination at all so any aspect of gonzalez lopez wouldn't really be relevant to the inquiry as to what the pennsylvania supreme court found because there was just absolutely no prejudice discussion there but as a  then existing state of the law so you know again the the commonwealth hasn't raised any at any point either in this court or below suggestion that anything but structural error applies appropriately given existing rd circuit press well so if i may or not i don't think that it would be a watershed will issue it's just not a new rule given you know going back to china versus california going back to you know all of this court's precedents which would be relevant to that analysis as well it's just not new so there's no reason why this court wouldn't be able since the initial hit disposition was filed in the district court in two thousand and seven as you pointed out in our brief the commonwealth subsequent to that specifically disclaimed any reliance on to base at versus lame duck is not implicated here and they had many opportunities to make any sort of an argument as to why structural error doesn't apply they haven't even done that in this court so that is just and affirmatively waived by the commonwealth this court should not have any itself says we have no trouble concluding that structural error applies here so i just don't think it's a new rule at all and so we don't even need to get into the t v exceptions but again i come back to the fact that they have