circumstances of the murder without his attorney participating so the judge could make a legal ruling on whether he would be able to present his heat of passion defense the state court held that that hearing wasn't a critical stage so there wasn't a problem but its analysis was diametrically opposed to the big supreme court critical stage cases and those are hamilton memphis wade coleman any of cases and all four of them clearly established the legal standards that entitles schmidt's relief they all hold that a critical stage is in a criminal case is a proceeding where there is at least potentially contested issue and we're defense counsel can help prevent prejudice or mitigate prejudice to his client so this case is unusual but it actually combines some of the problematic features of  supreme court cases like in memphis and coleman this involves the taking of evidence so a defense attorney there can generally questions a witness can object to questions now are you sure that mr schmitz attorney had he chosen to speak up could not have objected to the court's questioning of mr schmidt well the court specifically told him that he could not that he was not able to participate you know if your says something like you are not a participant well he did something like that he discussed with the prosecutor the fact that the in the procedure he would not allow the defense attorney to participate because his goal was to put the defense attorney in the same position as the prosecutor who was not in the room and so he said that back when they were in an open and then he said that again in chambers the tourney was not to participate and then later very late in the hearing when it was nearly over and the judge the smith could have a chance to read the offer of proof while he was back making a phone call he really reiterated and made it clear what his previous order had and when the lawyer said you know just for these few minutes can i talk to him about the case and the judge said you should only be going over the offer of proof but sure if you're going over the offer of proof you can talk to him for the youth for these brief minutes when the hearing and it at  that point to counsel try to supplement i mean i understand that the judge later characterized it as a final ruling but that wasn't right away right was there any effort to try to get him to reconsider and to submit additional presumably presumably there could have been some effort made to get him to reconsider right it wasn't until later on counsel asked was that final and he said yes that's fine that's right and so that certainly makes it clear that he pretty not have supplemented but did really report and the trial judge says i've already ruled on this issue so that's a few weeks later but you're saying there's also something right at the end of the rigging in this when he reaches the ruling that says you cannot present evidence on  provocation infective he doesn't just say that he says there was no provocation here and so that i mean frankly even if there was the lawyer could have tried to put in affidavits could have tried to file and like we said in our playgroup there's really nothing you could do at that point to unring the bell of this lengthy evidence you're hearing with the judge questioning the defendant on the underlying offense with the attorney in permitted to says once there's a definitive ruling council doesn't have an obligation to continue to pop up and try to get the trial court to change its mind that is correct your honor i mean and this is the can i ask is there any supreme court precedent on this at any part of the evidence you're hearing other than again this is just a very limited role of you can help your client read a document that has apparently never read because they went into chambers so prickly after this hearing but again i mean the role of counsel for that we can go back to powell and gideon and then ferguson and then really all of the critical stage cases that we talk about what is the role of counsel it's to protect the client's interests and to prevent prejudice and the lawyer couldn't do anything at the hearing that would allow that the lawyer agree to this procedure there's some fuzziness in the record about that there's certainly acquiescence but no there is no agreement to the court is the one who proposed the procedure the attorney essentially said if you're going to have an expert a discussion with my client or sorry if you're going to have a discussion with my client i don't want the prosecutor involved and i want the record and then the judge asks the prosecutor prosecutor do you object to this as long as i won't let the defense lawyer do anything he doesn't ask the defendant do you object to this procedure and the prosecutor says no that's fine as long as the defense lawyer can't do anything and that's when they go back and he really are reiterate for the record the fence lawyer won't be participating in the hearing so getting back to the state court of appeals decision the state court of appeals held that  issue whether schmidt would be able to present his defense but again those supreme court cases that i'm talking about none of them have any concern for the judge's subjective reason for proceeding and they also aren't about whether a forum is the exclusive forum for resolving a particular issue and that goes to judge hamilton's point well this is an issue that has substantive don't have actual time of which he standing for which he'd stand trial right absolutely and if you just think of the term critical stage not even looking at the cases and it's colloquial sense there was no hearing in the entire case that was more critical to mr schmidt than the hearing where it was determined whether he would be able to present its defense and a huge part of that perhaps the biggest part but we don't have to show it's the biggest part but a big part of that was him testifying nakedly before the judge was no attorney questioning him counseling him assisting him or even making arguments about how the judge should interpret the testimony he gave well the judge over and over keep saying what was in your mind what was in your mind right and it really seems like mr smith doesn't didn't necessarily understand the question and a lot of times it was sort of sort of was this part of your state of mind i mean again it's important to remember that we were talking about an evidentiary ruling here  did the defense meet its burden of production to present a defense at trial that the state within have to disprove mr schmidt was talking about all kinds of stuff because he's not a lawyer he was talking too much you know since there's a problem here rather than having presented too little evidence right and you know throughout these proceedings people said well what should he have said what should he have said you know i can't pull something out of my pocket that he if he had said it it would have changed everything but what he did was muddy the issue so terribly i mean just the way that the supreme court talked about in ferguson versus georgia that an uncountable defendant might do sort of adrift in this situation  contexts now so i am not saying and even if they are inclined to say this is a violation i'm just thinking of the at the context and make that leap for me on the clearly point sure well in terms of the adversarial again the critical states cases are consistent this is is there even a potentially contested issue that's being decided here that's what it's talking about when it's talking about confrontational an adversarial so is there a prosecutor questioning him at the hearing no but this was an adversarial proceeding as part of an adversarial case even though they got the job as opposed to the defendant no i certainly wouldn't argue that but that this was a hotly contested issue that both parties were arguing as part of the adversarial process and i understand under wisconsin law this this factor all call it could relate to a more significant period of time than just you know the the arc typical you know walk into the room and discover somebody in bed with your spouse and shoot him you know that on the moment that wisconsin actually has a longer time period in mind yes that's true in the trial court got that wrong in deciding the issue which the state court of appeals recognized but then looking at all of the evidence under under a discretionary standard it found that the trial court had had reasonably exercised its discretion in finding that there wasn't sufficient evidence but again it was looking at the evidence presence at this bizarre hearing where there was no attorney and so we have both judges talking about things like well the fact that a crew would leave a loaded gun in a garage with children now that was a weird fact i mean i don't know how many of you have gun loving relatives   is it your view that at least part of that analysis presents a fifty two problem where the court says that  made could have presented additional evidence and that his attorney could have objected were presented concerned sorry there was a if the if the counsel felt schmitter the co overlooking something or had any other concerns or is an opportunity to so advice schmidt or those consistent with the record i think there's a potential to two problem the problem with us is that frankly the court of appeals is them big us and so it's not entirely clear what is the fact that they are relying on here and i think there's a couple of ways to read it so but but certainly i think it's possible that there is a d two problem i don't think you have to get to do two because there's such a clear d one problem that this was absolutely a critical stage it was arguably the most critical stage of the case but again we don't have to show quite that much here but i'm getting into my rebuttal thank you thank you very much objecting or doing anything in that certainly in the manner that it sounds like a definitive ruling you know and in the rule one hundred three sense and lest there be any doubt about that when counsel tries to introduce the expert report he's not told just this expert report has a problem if you look at that context it in context the judge is saying i've ruled on this sure don't bother me anymore and i doubt it that's right  homicide is resolved on the basis of this i've never seen anything like this before this bizarre ex parte process in chambers where the defense attorney is told you are not a participant you may not speak and may have to if the lawyer had spoken up and tried to object to something the judge was saying could have been held in contempt he was not told you may not speak he was told you are not a participant what does that mean to you he was told the council is present but not participating so exactly i understand why you want to get away from that conclusion but it's it seems like revisionist history to me and i disagree your honor i think before the defense whether it be an element of the crime can be carved often sent off into the judge's chambers with no what look i'll just say very limited participation by the lawyer no jury   no weighing of the facts he's got his witnesses lined up you know he's got lots of people he's got lots of evidence and the judge pulls it out of the adversary process i don't see how this isn't even more critical than some things the supreme court has labeled as critical a sure you understand the point that he has lots of evidence these witnesses lined up counsel is given an opportunity to present these witnesses in open court and didn't know not not  on this defense once the judge has said i am not going to let you introduce any evidence on this defense grech not so afterward no not at the real trial in other words but at the february before the feb tenth hearing counsel was told holding this hearing when the puerto rico somebody has a self defense claim you think it's fine to take that away from the jury to have to court before the trial ever starts with no lawyer able actively to help the defendant to decide whether you're going to let self defense in their situations so the purpose of this hearing was to protect mr schmitz but the men are no no no this and this ran rampant over mr smith's rights it was not in any way shape or form something that protected his rights maybe it's something the state's going to get away with but it's not something that protects his rights i am still struggling with the nature of this hearing so is it the case i mean it sounded to me like the judge was afraid that some of the evidence he would introduce on this on this issue on this defense would confuse the jury sucka for a three  so it seems to me like his hearing was kind of like a motion and women a sort of because he was trying to figure out if he could carry his burden of production for this defense because that was weighing into his calculus of whether some of the evidence that smith wanted to introduce would be excluded as confusing or prejudicial to the others correct he was proposing introducing i believe it was twenty nine witnesses you know whole manner that didn't before trial and all kind of aimed at the  character the victim acts of victimhood committed sure enough and judges deal with that all the time without this procedure they say it's too many witnesses they say i'm going to restrict you from going into the victim's character they say all kinds of things they don't have half the trial outside of the courtroom even with that the court does have discretion i mean there's sort of two fights going on before the trials whether the court could even make this evidence or a decision before a trial because this is the sensually the the jury instruction and the decision that would had all the evidence come in this was a decision the court would have been making at the end of the trial so the court had discretion to make this decision before trial given  amount of evidence and how the court makes a decision is critical if the judge looks at the list of witnesses and you know sees what the lawyer indicates i expect witness a to testify you know that she was abusive to other husbands i expect witnesses be testified to a former event the judge can go through that list certainly before trial judges to it as judge perry says in motions in limine all the time what judges don't do is go back to chambers and hear on counsel testimony from somebody at great length and then rule on the merits whether a defense is going to go forward or not hearing was not the only opportunity for schmidt to present his provocation provocation evidence to the court can you point us to supreme court precedent that suggests the defendant does not have a right to counsel for the presentation of some evidence because he but that's not a critical stage because he has counsel and other opportunities to present more evidence well anything in the in the supreme court's i understand that's a separate question let me try this a different way page twenty eight of the blue brief appellant says it's not surprising that neither the supreme court nor any federal circuit court has ever ruled in an adversarial proceeding occurring between arraignment an appeal which settled the substantive dispute was not a critical stage is that correct can you point to anything else is  correct that there is no supreme you know like yes and that goes to argument that there's no clearly established federal law there under the eighty eight here so no the appellant is saying the supreme court has never found that one more way i think in your brief you may have cited the panel opinion in das e and supreme court's opinion in your parole where you've got multiple factors that affect the particular constitutional question and can you point us to other precedents that suggests anything remotely like this is not a critical anything on your side of the scales here well i think what we have on our sides of the scale is that there is no clearly established president holding that this type of hearing requires counsel to do the questioning specially when the prosecutor is not present the the more insulated it is from constitutional review and i would note that williams against hiller the supreme court makes it very clear that just because a problem hasn't come up doesn't necessarily mean that a state court decision can't be contrary to clearly established law as announced by the u s supreme court and that's so you know and there are some things such as perhaps not resolving substantive issues in the case through a procedure in which the defense lawyer can't speak the prosecution isn't there for that matter or the judge is just off on a long discussion with the defendant seems to defense counsel at any value here defense counsel is present at the hearing so he was obviously there to observe it you heard schmidt's answers he sure did he heard the evidence that went to the court he consulted with she met during a break in the hearing and they read in a limited way the court said only look at this offer of proof which is what the the focus of the hearing was so yes but he consulted with question and that was just a very short time  the court took a phone call correct i guess i disagree with and with with counsel's argument and your honour's view that that really counsels hands were tied and he was literally bound and gagged at this hearing nobody hearing we talked about how this would go you didn't have any complaints during the hearing you didn't raise anything after the hearing he didn't raise anything other than this this later expert report but there are opportunities i mean he counsel at any opportunity to raise a motion for reconsideration to say hey your honor but you don't have to break you don't have to keep pestering the court it's not necessary to file a motion for reconsideration once the court has made a definitive ruling if you know you're served but to to kind of then go through the entire hearing the entire trial and then in the end say you know what he tries with the expert report but the judge clarifies the judge opportunities after the hearings and at any point you could have raised different evidence you have that just wasn't new evidence he was raised as an expert report basically saying the same thing what was the basis for the prosecutor's request that the judge say it wasn't stated i think the court the when the parties were discussing mclaren and both defendant defense counsel and the prosecutor agreed that mclaren allowed the court to be making this sort of ruling  trial and that mclaren recommended this and this type of an camera hearing room mclaren doesn't say that what mclaren says is you can have an offer of proof which is not this type of try of proceeding at all certainly not necessarily and i would just say that on the earlier point the attorney says well i thought the court left the issue open yet it was going to allow me to supplement the record concerning my offer of proof the court no i basically ruled on it i have ruled on it and you can supplement the record for appeal purposes by making offers of proof i'm satisfied that the court's ruling will stand period i mean god i understand the lawyers position how  was really concerned about this that we can't undermine the bell problem because schmidt went on and on and on and shot himself in the foot quite the lawyer and sought reconsideration of the ruling by pointing that out like well i may not have protested this beforehand i might have been complicit or agreed to this proceeding ahead of time but now that i said you know this just didn't go i expected to be able to participate and i was an observer and the benefit of my observer status i that after the hearing i'm going to move to ask you to reconsider because what unfolded was unconstitutional or at least unfair absolutely and that's there is nothing stopping the council and doing that and just to  one more point is of course ny times that you know that to kind of come in and say you defend it needs to meet a burden of production to create some evidence and then say he provided too much evidence i think is a little disingenuous and kind of hindsight based on this none of the courts looking at what happened at the hearing had difficulty figuring out what it was saying or how that within the subjective problem about a provocation in fact parties agreed that he had met your point it's what but in addition this got guy was so going to trial and he was still appearing before this judge at sentencing so there's only so much you want to do to emphasize things that your client said that are adverse to his interests and there's only so many things you want to do to make a judge angry i want to touch quickly she mentioned that one of the cases referred to irreparable harm that is accurate that's a true quote but it's important i mean if you look at the supreme court cases most of these there is nothing that is literally irreparable nobody is bound and gagged in these cases hamilton the seminole case is particularly interesting because the things that the  the client was not able to gird the things that went away at the end of the alabama arraignment where his ability to raise an insanity defense his ability to raise pleas and impeachment but then it specifically said the judge had the discretion to allow insanity defense later and he never asked for it but still he was the night counsel to critical stage and also please an abatement i had to look that up but it's apparently for mistakes that have been made that are explicitly fixable to start the procedure over and joe chilton's point and sort of i'm not sure who made this point now but you know we don't allow more creative outlandish constitutional violations under at put doesn't do anything for those and even in this court's recent on bank decision in death the it puts pinetti for the notion that a general standard can apply to  very unusual facts and they can clearly play it's a very unusual facts and that's what we have here i have one more point them at tech and that's just that again we have to remember that this was a very very low burden we're talking about some of the tents we don't have to show prejudice here but a lawyer could have made a big difference here and all right thank you very much thanks to both counsels will take one nine hundred five