mister please the court counsel experience criminal trial attorneys are not entitled to affront a hearing or inquiry prior to representing themselves that's to pronouncement of the kentucky supreme court in my client mr ayres case in mr ayres case he began he is a criminal defense attorney he began in this case representing himself there was never any type of inquiry whatsoever for two years he represented himself as we got close to the trial date which also implicates the second issue in his case that there was no inquiry was there ever a statement by mr ayres that he knew he was representing himself or any other kind of statement that would be along the lines of and the cases related there too there was never any kind of discussion in the record with regard to anything about his qualifications anything like say that but still if he didn't if your claim is that he didn't validly wave his right to counsel then we would be in a different place right i mean i thought your claim was that the error was that he was not warned about the dangers of the representation which might be a different plane well i appreciate your parsing of this but i don't believe that's correct i think what we're talking about here is you can't have a waiver unless the court determines it is knowing intelligent and voluntary that's my argument that and that's what the supreme court of kentucky rejected they said no you don't have to do anything if you're an experienced criminal trial lawyer the frederick inquiry i mean the point judge larson is getting at i think is an important one which is what you say is that the problem is there was no for adding corey right and that's different in type i'm sorry i understand and that's different in time because what the circuits have said subsequently is and no supreme court has spoken of this is we can look at the record as a whole to determine if he is waiver was knowing voluntary and intelligent and to judge whittemore question i thought he said it bored dear that he knew he was representing himself thought i understand what you're saying but i mean it's very obvious that he was representing himself for two years he was the only person showing up but i think this this circuit itself has said the supreme court has required a forever compliant type inquiry before granting a self representation request which is in effect a waiver of the right to counsel and i know you don't set supreme court precedent but united states supreme court and marshall versus rogers pointed out you can look to your circuit decisions to see this it's very clear you must have this inquiry now when you talk about the other cases i'm sorry i know i'm sorry it seems to me what is the nature of being corey's important because what you're saying is there's some magical inquiry and there isn't right we can look at the record as a inquiry and the supreme court has said varies from person to person it may very well be in the context of an experience criminal trial lawyer it will be a very brief inquiry it may not be but you have to remember in this case the supreme court of kentucky specifically said we will not do what some other courts have done we will not combed this record to determine that for was met we are announcing and here's what our court said swagger v brown for ed it does not clearly establish that formal warnings by the trial court are required to establish a knowing voluntary an intelligent waiver right so you don't need formal warnings to establish that and what every circuit that i could find its looked at it is said is we can look at the record as a whole to determine if there was a knowing voluntary an intelligent way you're dealing with a state court case you want to give deference to the state court case under it but here's the problem the state court specifically rejected what you're talking about they said we're not going to do this and then they  there's a case published from our circuit called davis that neither of you discuss the other side about this but davis says all we do is look at the holding i agree with you the reasoning is terrible ok but all we do is look at the ultimate holding under harrington director at all and then we decide and that's all we look at if you want to point to the reasoning and say it's faulty i'll sit quiet because you're one hundred percent right well here's the second part of it even if we were to go down the road you say here's what happened in this case before trial a day we poor trial mr ayres filed a motion for a continuance and he requested that he be given time this is our second argument but it fits in with the first that he be given time to be able to contact a lawyer because he was incompetent to do this now at that point the judge had done nothing to determine that he was a competent attorney and that he had are i'm sorry that he had waived his right to counsel on the record there is nothing like that so now the judge is in this position she's being confronted with the very fact that this man says i can't do this and he is never heard on the record waived his right to counsel counsel i found the page in the reply brief so you say ayres was a criminal that this on page six of your pla unequivocal you know this is intended to represent by representing yourself that's all that referred to it's unequivocal if you come into court without counsel i never said that was never meant to communicate he stood up in court and made any kind of announcement it was that his actions spoke louder than words in the sense that he was the one doing the case and nobody else was there no counsel was there at all so is your argument now that he never val error there is a waiver of the right to counsel and there's forever which kind of language that talks about giving certain warning about the dangers of representation so those two things seem like they might be different so for example you can waive your right to trial right and if it's not a knowing and voluntary waiver we would reverse intelligent and momentary waiver does not focus solely on say on what does he need to know about self representation it's just like you know boy can inquire a criminal defense attorney as a defendant pleading guilty you don't say oh we don't have to go through the boy can inquiry with you because you're a criminal defense attorney you should know this we have to get a knowing and intelligent and voluntary waiver on the record there was no question as to one why was he an easy question it could have been food income tax what is your financial situation are you proceeding from snowy because you can't afford an attorney maybe you're eligible for a public defender over kinds of questions along those lines are you under any mental stress attack a judge larson's point you're faulting the state court for not doing me in corrie itself correct because it didn't produce on the record and knowing and intelligent voluntary waiver there's no way you can take out of this case that he made a knowing and intelligent and voluntary waiver and in the cases from the other circuits in many of those cases the ones that were cited by the other side  and either just trick a court or cases where the person showed up with counsel originally and then switched their cases where the lead criminal defense attorney comes in and tells the court listen i am somebody who's tried all kinds of cases i know how to do this this is no problem even if there wasn't an actual inquiry there's nothing like that in this record so what you're claiming and this is not what i got out of your br but what you're claiming now is that the well at no point did a judge say to your client mr ayres un stand you have a right to counsel are you choosing to represent yourself no time was the waiver of counsel knowing involuntarily shown on the record at no time did he explain the dangers and risk of proceeding pro se and no explicit finding of a knowing and intelligent voluntary waiver is made on this record there's nowhere that you find that that that was done the judge did not do that was the law secondly we're not in for from the fact that errors continued to represent him so that he was knowingly intelligently and voluntarily waiving well i think i think that my first thought is that you know my first thought is just a blank no on the the law but what's more important is we have him two years later saying i mean over my head i mean competent to try this i need counsel it's pretty clear from that perspective that he didn't know what he was doing so he didn't know a knowing and intelligent voluntary waiver being a counsel of different being not having this to represent yourself is a different inquiry then having the desire to represent yourself in that that i think the lesson of itself right forever says we don't require whether you would be an adequate substitute for a lawyer we enquire whether you choose to represent yourself despite what might be your inadequacies or it's interesting you know that the forever actually says your technical knowledge is not important itself instead what's important is that you knowingly voluntarily waived it and we don't have any evidence of this anywhere the other thing is the information that the that about him being experienced criminal trial lawyer was not before the cork in a proper way when she let it go to the jury when she let him go on and try the case when she denied his motion to get counsel that all came out during the presentation of the commonwealth's case to prove like you are and the judges the judges in in that situation with the unreasonable determination of fact one kentucky does not allow a judge to use their out of court experiences in any way sure say performing a court fact recently the supreme court of kentucky stated that is a structural error disqualified the judge and said you just can't do that so she couldn't she didn't take judicial notice she couldn't take judicial notice of personal information and as i said before she i mean the reality when we were of you it is there it's were irrelevant like tuckey's rules are and she did say i'm uncomfortable with this case because i know him we all know him he appears in my court regularly she also said throughout the case that it was a very complex case and as the court of appeals of kentucky pointed out none of that was addressed nothing was addressed with regard to his mental state there's nothing that would indicate it was a knowing intelligent voluntary waiver  the record about his financial situation well there with regard to that yes there were statements by him that he when he testified but it was that was after the fact aspect of that it's very important she could have asked are you facing any other prosecutions at this time they put you in a position that you feel like you have to represent yourself and he was being prosecuted in federal court for  may it please the court person counsel your honour's on michael brennan roberts i represent the respondent happily and our position is fairly straightforward the kentucky supreme court's holding is not contrary to your an unreasonable application of standing supreme court precedent where does the supreme court say there's an exception for lawyers i haven't seen that in the in the court's precedent or the constitution i don't think that this court says that there is an exception for lawyers and i don't think that's what the kentucky supreme court intended to do i think they're holding was too full they said that for it doesn't apply in this instance because he was a licensed attorney and therefore not appearing no i think that what the kentucky supreme court intended to say there is that you you are appearing as either a person as a matter of fact must appear as either counsel or as defended or as pro se and i think what they were saying is you're a destitute attorney and you get indicted what you're saying is in effect that kentucky doesn't have to appoint you counsel that get in be wainright doesn't apply to engine attorneys because they in effect are attorneys no they would still would still be entitled to the appointment of counsel if you chose to request counsel but if you invoke the assume that we have a run of the mill criminal defendant not a member of the bar  who appears in court in kentucky and the trial just proceed the nobody ever says to that criminal defendant let's assume that the felony case you know mr criminal defendant you have a right to counsel would you like to waive it and then it comes up on appeal what would the kentucky supreme court do with that case well he would he would clearly have the right to counsel and and you to invoke your right counsel ri this did errors invoke his right to proceed pro se no he did not and in fact not to my knowledge on the record and in fact when the judge then doesn't the judge it he certainly said it in front of the judge at the first pretrial hearing unfortunately the arraignment is not on the video record here the kentucky court of appeals said in its opinion that it would assume that he was informed of his right to counsel at the arraignment because the  quote at the first pretrial hearing which is on the record five twenty one of eight at nine twenty two in ten seconds the judge has asked for at that point has asked for all the parties to state their appearance and he says his response is judge bill ayers my own counsel at the present time so i don't think he intended to appear as a pro se divinity intended to be here so there's a person who is not a lawyer say the same thing if they were say college educated no i'm appearing as my own counsel they don't have a counsel the judge says state appearances why wouldn't that be a natural response of just intelligent criminal defendant naan lawyer well at that point the judge who knows that the individual is not an attorney then you have the inquiry room would become whether your waiving your right to counsel immediately because the person from the court as an attorney what are we how do we know what if you're out of state and you happen to be an attorney and you're in front of a judge and now we have you're saying that the knowledge of the judge is important well whether or not the person is actually an attorney is what is important and and believe that is in their corporate attorney never appeared in court in their life well for it is speaks to the fact they were not engaged in whether or not they are competent to actually practice the case but whether or not they know what they're doing right but they know what they're doing when they waive their right to counsel which never happened here desire to proceed pro se you have a right to do both and so this court said when you don't unequivocally state your desire to proceed pro se the presumption is you have not waive your right to when you are proceeding with counsel and so here he did not in equivocally state is right to proceed or state his intention to proceed pro se so the presumption must be that he intended to proceed with counsel which was himself and that is the definition of pro s well i guess that's the core of the case whether he is allowed to come to court in be a layman or whether he is comes to court as a last in the tourney and it's clear th he's a licensed attorney representing and felt i mean i would think that if i showed up claims court i would be appearing pro se as an attorney well represent myself but i think if you are if you are alaskans attorney that practices before that court in the court would presume validly presume that you're appearing as an attorney counsel but intelligently and i understand it understandingly rejected the offer anything less is not waiver so i want to get to this waiver point so you can see there's no waiver on the record it's not on the record now and you can see no warnings are given right no explicit warnings so why doesn't that case require we were versus the kentucky supreme court because he didn't waive his  was counsel any appeared as counsel would have had to know that what if we just flat out reject that do we have to reverse i'm not certain sounds and i believe you probably would but i think again he seeks to appear he chooses now to appear as a layman proceeding pro se but he was not an attorney and it seems clear from the trial court record that he sought to appear as an attorney who just merely represents a part in the  record is the indication where he says bill ayres i am my own counsel at the present time the everything in this case hinges on that because otherwise i just want to be clear what your position is  if somebody graduates from law school get sworn into the bar never been in court they get arrested on a felony charge they show up the judge doesn't ask if they've waived their right to counsel proceed to trial they get convicted they say hey there's a case called gideon i didn't get counsel and i was indigent the york position is the courts should reverse or not river i mean i am my own counsel that doesn't mean pro se i don't think so i think it means he's his own counsel rather than he is appearing pro se without him could say that if you're not an attorney right i'm not bad there's crazy people out there they say that stuff all the talking right and i think but i think the fact that the trial judge knew that he was a licensed attorney and then i mean on behalf of myself in latin well yes it does so i am appearing in my own counsel a little bit like appearing on behalf of myself but he was able to enter and appear and he was able to enter an appearance with the court because he was a licensed attorney at the time and i think he had not been a licensed attorney and he said exactly what he said wouldn't be entered as an appearance pro se yes and i think at that point it would be incumbent upon the trial judge to applied because he appeared as license counsel but then they also hilde that criminal defendants who are criminal trial of attorneys are not entitled to a forever hearing or inquiry prior to representing the sales but kentucky supreme court the waiver issue versus the warning issue i view those as two different maybe i don't think the waiver issue was presented to the kentucky supreme court but i'm not in my recollection there is not one hundred percent  but i think it the kentucky supreme court summation of its holding the criminal trial attorneys are not entitled to a fred a hearing is also not contrary to an unreasonable application because thread itself doesn't mandate a hearing and there are two circuit court cases that are very similar in maldonado rivera is that your best argument that the supreme court has not mandated a hearing he wasn't necessarily entitled to a hearing and all the circuits say we look at the record as a whole to determine if the waiver was knowing voluntary and intelligent or if you and essentially court circuit courts have reconstructed and looked at the record to see if the person knew what they were doing i think that is my best argument and i think that's the that is the best the most correct holding of the skintight the supreme court is that we're not entitle you're not entitled to a hearing because the record establishes that he knew what he's doing in practice practiced the case it was a year record how does the record stabbers that he was knowing intelligent voluntary he practiced the case for two years including at least filing several motions one of which was a suppression motion  he filed his motions for continuance based on discovery issues and otherwise as acted as you would expect train counsel to act in approach in the trial where i just stumbled because what you say to me sounds exactly like the arguments presented in bet's versus brady which you'll recall was overruled by giving it so investors but the lesson of bets versus brady is you only get a lawyer when you need a lawyer and we know whether you needed a lawyer because when you look at how well you performed in trial and say you did a pretty good job therefore you didn't need a lawyer and then give you an comes in and says we're throwing out all under the bus instead we're not going to evaluate whether you are an adequate substitute for counsel everybody has a right to counsel so what i hear you saying is that sources brady which is just contrary to giving in and that's where i get wrong but i think the question here is whether he unequivocally asserted his intention to proceed pro se and he did not and the presumption that this court is as i say stated is that when you don't unequivocal state a proceed pro se then you are presumed to be proceeding with counsel and in this case the counsel was wearing the same suit as the defendant either way there must be there must be ethics in must be engaged in must in assum that he is a layman who has not trained counsel and was not appearing as a last an attorney or you must conclude that he was a licensed attorney who was not appearing pro se there are two different sides of the same coin but i don't care what you are if you represent yourself you're pro se under any definition well and in that event i'd say that the record still establishes the totality of circumstances that he knew and understood the dangers and disadvantages court relied upon those judges in its findings and it is a statement on board your significant that he knew he was a fool for representing himself now i think this statement is significant in the fact that he knew and understood the disadvantages of representing himself when he did say that my time is up so i just ask any more questions thank you very much thank you surprise you question before you certainly do this to you but did you present to the kentucky supreme court the waiver issue versus the for at a fee and if you don't understand how we're breaking that up please ask i have the brief  off the top of my head i had always considered that they were actually wanted in this say and that was that he was they were saying there was no fraud inquiry therefore there was no waiver waiver citing that but older case johnson visa herbst says courts should indulge every reasonable presumption against waiver of fundamental constitutional rights given that case also says we can look at the totality of the circumstances and all of that record as a whole the totality of the circumstances at what point that's the key here the totality of the circumstances when the person has and has waived his right to counsel because once that trial started he was in and as a pro se litigant and he had not waived his right to cancel now to say that because somebody is a lawyer that they necessarily understand their right to counsel it doesn't necessarily flow that's why any inquiry is important that's why even the supreme court in front of said it has to be on the record knowing an intelligent on well i think i think he did by saying i'm incompetent to be able to do this case i have to have an attorney when he did that in a continuance right before the dream i mean over my head i might not be an adequate substitute for an attorney but that might be different than i didn't knowingly take on well it's tough i see your point your honor but i have to say this you've got you've got to remember since this case he represented himself there was no post conviction action there was no subsequent time for him to testify a lot of those lines is just one up on direct appeal and then from direct appeal directly to federal habeas so the fact that the judge never ask him anything about that the record is silent there's no place in the case in the trial where he would have are in the pretrial where he would have said that