it's also important to keep in mind that the criminal trial is the point in the process when the right to counsel is the most critical supreme court said in patterson versus illinois recognizing to  importance and role of an attorney plays at a criminal trial we have imposed the most rigorous restrictions on the information that must be conveyed to the defendant and the procedures that must be observed  statutory offenses included within them a range of allowable punishments there under possible defenses to the chargers and circumstances in mitigation and all the other facts essential to a broader understanding of the whole m in the u s vs hansen case a discourse decided just shortly after this president feel the spiral is court added to that all other factors but the trial court has to take reasonable steps to ensure that the defendant understands his obligation to hear to federal procedure and every century will or a hearing is the best way for the trial court to satisfy these moments it's not required and there is no precise litany but the trial court needs to question the defendant as long and as early as necessary to ensure that the defendant has a sufficient understanding of all th clear that you can't let the press of trial the fact that a jury a sitting in the jury box excuse or eliminate the obligation that the trial  there and there are some big beefy some baseline questions that need to be asked and answered to satisfy voluntary knowingly intelligent fans and also talked about looking at case specific factors those factors are certainly factors that the court can consider your own but still even with the consideration of those there needs to be sufficient evidence in the record that shows whether it was to question by the district or whether there is other evidence to show that the defendant understood these elements that von moltke listed out and in this case there simply  allow them to remain as standby counsel and after she went through the colloquy with them she asked is why yours if they had any additional questions or concerns before she  does does it matter that his lawyers before they were formally discharged didn't ask for you need to tional instruction from the court and would we be in a position where there might be invited error the defendant or i don't think it matters for the court in several cases where they set the standard of review have said that a close a defendant can't be held to know what what the perils we say that they don't understand the perils of so for presentation and therefore you can't expect them to recognize if they've not been correctly  i don't know that we can i can point to anyone mainsail and what we have here is a total lack of an inquiry and all of these obligation to comply with the rules of evidence and rules of procedure and understood the elements that might be a closer case but in this case we have i think  each of these factors in reviewing this case there simply isn't enough evidence to overcome the strong presumption that a waiver should not be and do you do you also how do you respond to government's arguments here that once the trial then proceeded and the defendant was asked acting problem saying that he seemed to do pretty well you look at that no you're on the court is clear so there's a number of times that you can't look at what transpired later to determine whether at the time of the waiver the counsel was appointed does not relieve or reduce the burden of the trial court to make sure that at the time the waiver was granted the defendant were knowingly intelligently making that decision and i mid trial because he wanted to question what misses the cases indicate that we're supposed to view the colloquy through a pragmatic lands why wasn't that sufficient for the district judge to tailor her warnings to his ability to has questions because that's what he wanted to do and the judge also said those questions might be objectionable under the federal rules  didn't the judge target these warnings to the situation at hand and why wasn't that sufficient you know are one of the reasons that the trial court is required to go through this with me is to make sure that the defendant understands the total breadth of responsibility that he or she is quitting on and the way he obligations and risks and so it's not i don't think it's sufficient to team needed to follow the rules your honor in the hanssen case like i said it was decided while this appeal was pending the district court asked specific questions about  the defendant understanding the federal rules of evidence and goals of criminal procedure and its answers were at least ambiguous if not confusing court said that even though those percents questions had been asked because the questions we had the judge saying that some of your questions might not be allowed at trial and i don't know whether that would happen or wouldn't happen because i don't know what the questions are you understand  never made clear to the defendant that the expectation was going to be on him to follow the rules and that he would be held to the same standard of his attorney as the judge certainly pointed out that his  his trial counsel would do a better job but the judge never informed him of the standard to which he would be held if it continued to make this decision to go forward without counsel just eleven dollars last question have misstated the maximum punishment why wasn't the twenty years the court did mentioned just ition for mr hamill to know that he was facing serious penalties i think it does show he took over well we don't know that he understood what the elements were what the charges were we know he clearly had questions about that questions that the court didn't allow him time to get cleared up before require him to go forward we at least from the record don't know that he understood that he was facing a potential life sentence sixty to sixty two years old and she states and she and the judge might get twenty years i mean again you're you could you can look at post those fact that well he only got a twenty year sentence so the judge actually gave him what she warned him might happen but again looking at it at the time decision was made there's something about the weight of a life sentence that it please the court mr bailey i'm jeff gallant one of the a u s a who tried the case for the united states in this case the records clear the defendant knew what he was getting into he knew he had excellent or great attorneys according to him he just didn't want the fence wants to elevate form over substance and elevate a superficial gotcha standard over pragmatism and common sense in this case mr hammett  voluntarily and intelligently waived his right to counsel in order to pursue his own trial strategy we know that from what he said during the freddie hearing this is the only issue in this case his three convictions that trial shouldn't be reversed because he was made aware of his right to counsel and chose to represent south with his eyes wide open and again we know this from the record because what the defendant said the defendant chose to represent himself and put on his own defense even though at the time he thought he had two great attorneys who were doing a very good job for him that's what he said but he wanted to pursue a different trial strategy that involved recalling two witnesses including the victim he chose to disregard the advice of his two experienced attorneys who he knew didn't agree with his proposed strategy but he wanted to do it anyway he was actually aware of the benefits of having counsel he just didn't want it and the laws very  defendants entitle to represent himself if he wishes and the standard is knowing and intelligent and that simply means that what he reasonably informed by the court of the hazards itself representation and had a sufficient understanding of the hazards and he brought this up as the court noted the very st time toward the very end of the government's case in chief and i do think that's all of it because he had seen and the court had seen all of the evidence that came in he'd actually witness what he considered to be great attorneys performing very well for him so he knew what his right to counsel would look like the court then conducted two ex parte sealed hearings that included damage to experienced attorneys the court and mr ham the government was not involved and the court conducted the freddie hearing tailored specifically to the facts and circumstances of this case if they she didn't follow a pro forma script or asked some sort of very technical question she tailored the questioning to the things that would most important to mr hammett in layman terms that he could understand he she explained the benefits of counsel that mr hammett had been experiencing during the trial and then the risk of pro se representation in the context of this case what was most important to mr hammett was his questioning of witnesses and doing a closing argument and the freddie hearing as this court well knows is a favorite approach it's sufficient but not necessary as stated in cases like willy among others it is just a means to an end to ensure the defendant is aware of the dangers and disadvantages of self representation and he knows what he's doing the courts for right here in this case did precisely that and we know that the defendant was aware of the risk because he said so on the record in many different ways for example at the end we have judgment that so many let me interrupt you there in front like you are moving on to a point you want to than either tell him or let him see documents that would with explain the elements of the charges against him and how are we going to overlook those two decisions here i i'm with you on the pragmatic holistic approach but are those are those fatal flaws to your argument why not you not at all your honor and with respect to a possible defense is again this took place in the context of when the trial took place that he had seen the evidence he seemed to defend his attorneys were trying to pursue and then he had his own trial strategy that he wanted to pursue that he had to kill a did to the judge that he thought some of the witnesses were paintings that weren't true and he wanted to combat those and so i think in the context of this case and all of the cases talk about in the total circumstances or in the context of the case and then the issue about the elements i do think there's a couple of things st of all as a layout i believe the senate actually had the jury instructions that actually had the elements in front of him when the judge was telling him that he couldn't read them right then but she brought up the elements and she was emphasizing to him the idea that he didn't understand the law and it was actually  think a positive thing in this case that she was emphasizing that he didn't know what he was doing and he didn't even know all of the law that was relevant and then but he realized that he agreed with the court and still wanted to go her what was the judge's obligation to probe further knowing that a lazy person doesn't understand or know the law i mean that's what's let's debate you know your putting a fairly low bar here perhaps in this case requires us to decide how how high the bar should be for no specific instructions about the legal requirements it's going to have to overcome to get an  i think we pass i think the bar is laid out on all of the and all of the cases sort of collectively is you have to look at the totality of the circumstances and see if the defendant was actually aware of his right to counsel which is clear in this case because he had actually benefited from it and then also did he have some appreciation of the the risk and you can't the but the bar isn't that the judge has to inform him of all of the law all of the civil procedures all i mean criminal procedure but just tailor that to what's important in the context of that case and we know the defendant was aware of that because he said at towards the end of the four at a hearing this is quite an to denver to take on with such a lack of knowledge that's when the rd volume at thirty seven at the beginning of the freddy hearing he said well this is quite a choice he later on says this is my life i'm not going to play games he said he said i feel it's very true when the judge said you know you're going to be disadvantaging disadvantaged examining witnesses because you've never done it before that from page thirty four and thirty five of the record he consistently admitted he was ill prepared to represent himself and it specially relative to his experience of attorneys who he thought were doing a very good job for and that's thirty three through thirty six of the records and then he even admitted to the court that he understood he was more likely to be acquitted by being represented by his to experience attorneys so the record i think the answer to your question is you have to look at the record and see does it demonstrate that the defendant understood the he was undertaking and in this case the issue of the defense's is mitigated to a certain extent because it was clear the defendant had a trial strategy he wanted to put forth that his two experienced attorney who he thought were great in doing a good job thought was unwise this is not one of those cases where he's left stranded where either because of his political or social believes he doesn't believe in lawyers or you never had counsel or you had some if she were he believes his attorneys are prepared or he believes he has some breakdown of communication with his attorneys this is the exact contrary and this makes this case very different he was then look let's  van and for mete we don't have here and advisement of the nature of the charges the statutory offenses that are included within them a range of possible punishments possible defenses to the charges i mean it's to me it is a pretty empty record i appreciate there were two hearings but these basics were not covered i believe they are your honor because during during the trial i believe and then he listened to all of the evidence through the trial this is not a case where it's at the beginning of the proceedings where there might be some unclear to me about what the charge are it would certainly clear what the charges were the issue of the maximum penalty that that was unfortunate that the judge misstated that but and the cases say i think it's an even says that you know not doing one of the things one of the florida that's a pretty key thing is that i'm not not penalty that you're facing and you're you're queuing up to defend yourself not in in this particular context your honor as as we said but the whole reason we want to know what the the maximum penalty is again to him and emphasize to the defendant how serious this matter is and when you're sixty two years old and you're told you could have a twenty year sentence i do say well you know when you have life is is some measure of more serious but it's definitely impressing upon you how serious it is the charges you're facing and then you also also said in response to judge temperature that it was significant that the request for process representation was made after the government's case and to that point he was aware of his defenses how in the world would he have been aware of sensis well he was aware of the defense he wanted to put on he had a trial strategy that it's obvious he had discussed trial strategy with his two experienced attorneys who again he lying i appreciate that he was he was really wanting to question the victim i mean i get that but that doesn't tell us that he was aware of the defenses to use crimes that he was charged with or even what the elements of those crimes were so you could fashion some type of defense to them i think from that it's implied in the record when the judge says i'm not going to let you read those now that he had the elements right in front of him and then there's judge he said i'm not going to stop and read them to you that's she did say that your honor but in the context of he did have the elements great in front of him because he had a set of the jury instructions that's all i have  you if that was a concern to him if that caused him any trouble he could have expressed any kind of concern to the court and that's what makes this very different than the hanssen case in the hanssen case as i counted the defendant gave four different answers so you know whether or not he my father michael said i was going to stop it i have to i can't leave you with that it is not the defendant's responsibility to say to the court hey i've got a question i have a concern about x y and z in this type of situation where you're waiting counsel it's the court's duty to explain to the defendant the basis for the waiver what he is waiving what the charges are and the whole pan s do you know what the elements are and each of the offenses the defendant i would like to know the elements of the court well they are in the instructions and i'm not giving you time to read the entire instruction set now now even if the instructions were right there on the table in front of him the court's not going to give him time to read them and he has said on the record that he'd like to know what the elements are how can that be adequate to explain the charges against him i know already makes before he makes a decision yes i would i would say two things about that st of all he had heard about the charges at his initial appearance and throughout the government's case in chief there really isn't can be any question that he knew he was ok i thought i thought that was going to come up council so let me just you the charges are read at the initial parents in every case why would that make a difference don't they need to be presented contemporaneously when the defendant is making this decision on whether to self represent i don't i think obviously it's preferable if this is if it was brought up at the for at a hearing but it's not whether or not the friday hearing could be better because it can always be better but in the it's particularly in the context of this case where he's just heard all the government's evidence hoping that it's clear he does know that and i would just say that the issue after the judge says that the there is a colloquy error is off the record conversation between the defendant and his standby counsel and then afterwards he said yes ma'am and then she uses the point of the elements to emphasize to him what and serious mistake he's making because he's not learned in the law like his attorneys are so it actually goes to emphasize to him the risky hazing and all with that he understands it and just just a short while and i you've mentioned a number of times now how he thought his attorneys were doing a great job what difference does that really make i mean you you could have the greatest  attorney there is but if you want to represent yourself why does it matter i do think it goes it is important because as part of the right to counsel you have to understand the benefits of having counsel and in this case this is a number of the cases are situations where for tax protestors for instance they don't want to have an attorney or they believe their attorneys incompetent or they believe their attorney not prepared this is a case where the right to counsel he was acutely aware of that right because not only did he have to experienced attorneys he subjectively thought they were doing a great job for so i think in the context of this particular case it is an