jury trial in washington county where he was eventually convicted unfortunately prior to his trial mr vickers the noid signed a waiver of his right to a jury trial and he was not given a colloquy by the trial  because the fact is a fact in this case i think we're going to call in this favor the state court findings of fact which were reviewed by the district court which very clearly i think set out that  says that clearly or not but i do know that two of the twenty two fifty four says ok and section twenty two the opinion of the superior court was that they never got to the question of deference they decided this there could a question before them on the question of deficient performance well that but i don't think that this is a cry don't think the state courts ever got to the question of preference prejudice because there were if you wanted to the question of whether or not vickers knowingly and there and i think it's fundamentally important here is that again this is not a case where mr vickers expressly requested a jury trial and he was denied one by the trial court this is not  malory under pennsylvania law says wow an express waiver of a jury trial certainly something that is preferred it is not the end all be all let's say that a court can come back after the fact   i think that certainly it would be a professional morning to make sure that your client has waived the right and done so knowingly and intelligently doesn't that answer the deficient performance  secure the written waiver in other words mr vickers in the state court was determined to have known all of the things that the united states constitution says that a criminal defendant should be made aware of prior to waiving his right to a jury trial the state court found that to be a fact that he was aware that he had the right to pick twelve people from the community with the assistance of his counsel and participate in the selection of the jury he was made aware of all of that he was made aware of the fact that he could do all those things in this particular case his trial counsel testified we talked about it we talked about it even the day of the trial and i told him it's not to listen to his ass will testify you never told the verdict if you up before a jury had to be  well that's true but that those p c recorder was drawing its findings from two sources of information one being the testimony of his trial counsel who said we spoke in broad terms that you have the right to a jury trial in this case it's a serious case product of the brain to a jury trial what they asked for with this a lot of the district court ruling to stand would be essentially to overturn the commonwealth versus mallory and say that it is now a violation of the six will agree that under prevailing professional norms a defense counsel should recognize that there was not a full week or i think that the formalities of analyzing this not as a matter of state law but federal ineffective assistance law on the issue of president prejudice i would of course agree with that decision and really that the question is not with mr vickers have elected for a jury conclusion than a judge would have assuming that the judge was not bias assuming that the judge followed the law which i think is a really course court said how can we process will determine well i understand that the supreme court has said that's a difficult benefit given when you're looking at sufficiency but i think what you can do what judges conway do is look at the evidence and say is there really a question that a jury may have acquitted this man let's look at what the evidence rose rather wasn't much evidence was described by the trial court as meaning clear unequivocal more particularly the identification especially when you consider the fact that mr vickers never really carried on much further after his conviction about the identification focusing more on the idea of whether or not one punch but the mens rea for the crime of aggravated assault in pennsylvania i'd like to get back to the right question because  impartial trial there's no reason to question the fairness of a grad and therefore there's no injury ruffler comes along and says that is not the right question when we're looking at something we're not going to presume that they're stricken scrum then we're going to ask the question when did defendant is there evidence from hearing that the defendant otherwise would have exercised that right if so  the strategy that mr vickers went over with his counsel about the no injury trial when asking what she would have done again the findings of fact of the state court were not that mr vickers was unaware of these rights the findings of fact of the state court were that mr vickers was very aware of all of these rights the real deficiency was he didn't sign the piece of paper acknowledging that he was aware of them the state court piece eyrecourt had no question nor did the penciling superior were certain that you know he didn't know that he had the right to unanimous jury i think to credit that statement would be to overturned the factual findings of the discuss it you do have this colloquy that he signed but he checked off every box saying he was aware of all of those rights but that was in the first case it was five years before well that's true but fundamentally he was not find that credible but nonetheless it is you asked if there was evidence on the record there was evidence in the record or any discussion that he might have had with counsel about strategy doesn't matter if he wasn't fully informed because he can't there is no evidence even with all credibility determinations to the peace corps there is no evidence that he was informed that jury would have had to have been unanimous and that's why we picked that out in our brief depending too because we didn't want to get into questions about is tense in three specific circumstances and the total deprivation of counsel is building one that could apply here and that that's what the court has said is required and it's gone this far but you can't look at this as the total deprivation of council we still have to relook at that as a discrete ever engage in a prejudiced analysis why isn't that akin to what we have here why doesn't that answer our own with hill which is even closer in terms of the point you're raising and no i'm not suggesting that this is a college situation if you will but it's a little bit probation of counsel but this look at the sorts of cases that the supreme court has pointed to as structural cases question whether there's evidence that the defendant otherwise would have chosen to proceed by way of jury trial why doesn't that tell us exactly what that we need or the district court needed to do here you're going to have to answer your question the first and i think that there's a very strong case that the state courts unreasonably applied federal law the first round of strickland in saying that this was not deficient performance with respect to prejudice as i've said prejudice can be supplied by a court found in this case is not like mcgurk where the attorney actively deprives his client of the right to a jury trial through some drastic a mission like telling him you don't have the right to a jury trial and by that direct action he caused his client to lose a fundamental constitutional right there's a clear correlation between his counsels or mission and the deprivation of the right in this case the findings of fact you kno support that logic the findings of fact are that counsel made his client aware that he had the right and that client was aware of that right the only evidence in the record that mr vickers was not aware and would have chosen a jury trial was his testimony which ultimately was not credited by the p c or a court it was found to be not credible testimony that piece or a quote credited his truck counsel's testimony saying that he was aware of it and he did so like different strategic reason so in that sense i can understand where if trial houses ineffectiveness there's a causal connection between the omission and the total deprivation of the rape then i think it is a substantial public interest involved here well because we're talking about the predators of the sixth amendment but also and this is my opinion i think common or personality stands in some jeopardy as a good law in pennsylvania if the district court order is permitted to stand in this case that this is ineffective assistance of counsel that courts cannot under these circumstances look post hoc let's say and justify what but  whether there's a waiver given that there are substantial public interests involved here i am responsible really on the part of a prosecutor's office to represent those public interests i don't need to be concerned here that we have throughout  i would offer to you is that and this sounds like an excuse that that the burden so let's say of the day to day events on a small district attorney's office oftentimes makes you know filing i don't want to say difficult but a state's attorney general the chief judge in this court who called and told me that i should be taking over all he's practice in the state and i told him i do think that was very practical and probably wouldn't fly we see if we could state correctional officers yes sir but they have you reached out to that office for help and assistance on occasion i can say we have yes ok all right well i think it's enough of that topic i was curious about it and for their job but today