our next case of the day is freeman versus pierce number sixteen twelve twenty nine does not defend the illinois trial court's ruling that mr freeman could be tonight his right to self representation because he had only an eighth grade education and most important here the state concedes that mr freeman did make an unequivocal request to represent himself in his written motion to proceed pro se that is the state abandons the illinois appellate court's argument that at the time that motion was made the motion was somehow equivocal that leaves the state with only two reasons for nevertheless affirming the decision below first the state argues that even though the written motion to proceed pro se was unequivocal at the time it was made that motion somehow became equivocal after the trial judge squarely denied that motion because mr freeman didn't raise the somehow became equivocal infrared itself mr ferrara made his motion for self representation that motion was squarely denied and as chief justice berger says in his dissent after that point mr forever never again expressed dissatisfaction with his counsel he made three other motions to substitute counsel but after that he never said oh i'm still unhappy with my counsel i still want to represent myself and in fact mr forever proceeded to trial with his counsel on the state's argument you could say there is well well because mr freeman didn't continue to raise his argument it somehow became equivocal in light of subsequent events through your new excuse me he was a year and a half with the subs to your honor it's true that substitute counsel was appointed but again after the motion had been squarely denied and in particular in light of the reasons that the trial court gave for denying that motion there was no reason to think that mr freeman had somehow abandoned his desire to represent himself remember the trial court denied mr freeman's motion because he had only an eighth grade education and because the trial court thought he didn't have the necessary experience and abilities to represent himself that simply did not change when new counsel was appointed if mr freeman had made his motion again and at the point when you counsel was appointed the trial court would  i'm sorry you still have only an eighth grade education you still lack the necessary experience and abilities to represent yourself even if mr freeman had been an experienced lawyer he would have had no reasonable ground for raising again his motion to represent himself just because new coun had been appointed and at that point it's simply unreasonable under ferrata to place the burden on him to raise a motion that would clearly have been a frivolous stroh's are you in the state of talk about some of the cases from other circuits that have dealt with variations on this the scenario under ferraro would it be accurate to say that the key issue in those cases about whether you need to keep complaining about the keep saying you want to represent your the key issue is whether the trial court has definitively denied the request or so for presentation yes your honor that's correct and that's exactly why this case is different from campbell from johnson in the circuit from kaine versus peter's because in each of those cases the defendant either subsequently with drew his request to represent himself as an campbell when the trial court asked mr campbell why you don't really want to represent yourself do you mr campbell said oh no no i don't or in cases like johnson and kane the trial court simply never ruled on the motion for self representation and in that situation of course it's perfectly reasonable for the court to conclude well because the defendant didn't insist on a ruling on his motion for self representation he must have abandoned it when he proceeded to trial but that's totally different from the case here where the trial court firmly told mr freeman i am not going to permit you to represent yourself because of your lack of experience and ability is one of the concerns in the syria law i mean the drives trial goes crazy  because of the damned if you do damned if you don't danger one of the concerns that this court has written about in this context is a concern about sandbagging about going forward with counsel and just kind of having tucked away this news he so closely to be able to set aside in the later conviction under your approach how was that problem addressed your honor two things first of all to a certain extent for recognizes that there is some danger that allowing a defendant to choose the right of self representation will lead to the possibility that a defendant will not do a good job representing himself that's just one of the risks that comes with directly that question the trial judge has discretion of course to say i'm denying this motion because i think that you are just game you're gauging in gamesmanship you're trying to simply game the system when th defendant makes it clear and unequivocal requests to proceed and makes that informed and intelligent choice the trial court is required under ferretti to permit him to represent himself if the defendant later appears to be flip flopping back and forth on that choice the trial judge has the discretion to say i'm not going to let you simply change your mind to obtain a continuance or because i think you're trying to create a false issue for appeal because i think you're trying to sandbag a later appell question but that's simply again not the case here there's no indication that when mr freeman made his initial motion to proceed pro se he was really just trying to create an appellate issue indeed he was quite forceful in insisting that he genuinely wish to represent himself this is a man who after he made his motion after his motion was denied insisted repeatedly that he would not go to trial with this counsel and indeed went so far as to walk out of the room when the trial judge continued to insist on i wonder if anybody can tell us how that happened i was not  trial myself your honor and so i can't speak to that issue directly but having meant to point out no i was not a point in that happening but to be clear i think the important question here is the question of the illinois appellate court's determination which was that at that point the illinois appellate court said mr freeman's motion was somehow still equivocal and that determination is simply unreasonable under for at i'd also like to briefly address the state's alternative argument which it raises for the first time in this court that mr freeman somehow later acquiesced that is that you voluntarily relinquished his previously asserted right to self representation by proceeding to trial with counsel now that is not an argument that the state ever raised below the word acquiescence does not appear in the state briefing in the district court care what they did or you waiver your honor they did argue waiver in the sense of vacillating positions causing waiver but they never raised the at the essence argument and so there was never a factual finding either by the district court or by the illinois and then immediately there after for the petitioner or the defendant to get what he wanted which was to get rid of the lawyer that's what makes this case different from forever well his motion did say he wanted to go forward with so for a presentation correct his motion did say that and he also said in that motion that the reason he wanted to go for it and this is this is a run it was no reason for wanting to go here or never never asked for so purposes a representation when they're happy with their looks correct and and so this that is not what makes this case unusual what makes this case then got rid of that lawyer that he was unhappy with and it wasn't the trial court's doing however in fact he got rid of that lawyer and the state court found that what he wanted was a different lawyer and not foster he motion your honor a boy may continue to talk yet and so not in that motion your honor but in the in the original hearing before he filed this motion he said you know when if when he accepted counsel again he said i really don't want this lawyer i got rid of this lawyer for a reason and grew like barking about this attorney as i think we can all agree that the reason he wanted to represent himself is because he didn't want this lawyer and there is no supreme court precedent there is no circuit court precedent where a defendant complains about his lawyer asked to go pro se because he doesn't like his lawyer then immediately before the next trial date and you all your files an appearance and he gets rid of that way or gets what he wanted and then there's still a violation of the right to self representation particularly when looks like he got what he wanted then he has to do something in the next eighteen months file a post trial motion he didn't even file a post trial motion complaining about his this is revisionist history what he said he wanted was to represent himself he didn't get that is there any other area in the law where a purdy who loses a definitive ruling in the trial court is required to keep raising the issue in order to preserve his right to know your honor and he's not required to do so in this context either the general rule of course is that you don't have to raise it again our position is that in this situation the appellate court made a finding of fact that because what he wanted was new counsel and because what he got was new counsel that in the eighteen months thereafter before he got another lawyer who dug through the record and found an error that he would have said something the fact that he didn't shows that he got what he was so you think we've got as a twenty two fifty four d to finding of fact about what mr freeman really wanted notwithstanding what he said in the motion when he said a hearing and his indication that he didn't want anybody from this operation the homicide operation in the public defender's office well i agree with the first half of that that statement is that we have a twenty two fifty forty two finding of act and that's on a fifty six on the appellate court's opinion in the appendix and i  disagree that it's not withstanding the motion and it's not withstanding the transcript because as we all agree he didn't want this lawyer that was the motivation for his motion he made it clear in both theories and he made it clear in the motion before the judge ever asked him why he wanted to see pro side now there is a tricky fight and there is a tricky factual issue with regard to the to the statement that i don't think any member of this public defender's office can adequately represent me and so that was one of the that what he really wanted to win is to get rid of foster and that's what he got i would also quickly point out that how deep how do you square that with forever itself because in for i don't you didn't get a new lawyer state appellate court is language that you all have abandoned lete the record thus reflects defendant's vacillating positions and courtroom behavior regarding representation leading us to conclude that he did tacitly the vacillating behavior was first well excepting council then getting rid of council by the right then after the fact set not filing a post trial motions participating with council same here green with trial council strategy it you know if we were grading the appellate courts and you know as a law school exam it would not receive high marks however they made that factual finding and there is no supreme court or circuit court precedent holding that when a renewing the request no we cannot your honor just as just as petitioner cannot point to any case where he wanted a new lawyer got a new lawyer and then there was never the last a finding that his right to self representation is violated thank you thank you  court actually said was the record reflects the defendant's request to proceed pro se was primarily based on his objection to representation by certain counsel rather than a decision to self represent that's the aspect that the state is pointing to and on that point your honor it's true it was an objection to certain counsel the objection was to any counsel that was from the public defender's office and the motion to proceed pro se is entirely clear on that on that point mr freeman's request is exactly the same as the request in for at he simply did not believe that any member of the public defender's office could represent to magically and for that reason he chose to represent himself fred a squarely bars the argument that the state is making here second with respect to the final point that was raised by the other side as to whether there any circuit case that finds a violation of self representation when new counsel has been appointed as i was preparing for the argument last night i looked at the citation in wilson versus walker which was cited in our briefs two united states versus that's a our l t and in that case the defendant that's it forty one f thirty five sixteen in that case the defendant requested substitute counsel and was given substitute counsel all after his request for self representation have been firmly denied that's the since same situation that was presented here but more importantly the key fact here is simply that mr freeman made it clear and unequivocal request for counsel that request was denied and mr freeman never subsequently  withdrew that request his silence does not constitute a waiver of his right to proceed pro se and it does not make his initial invocation of that right equivocal in any way if there are no further questions we ask that the decision  advisement and will move on to the last case of the day which