the united states court of appeals for the th circuit is now in session thank you madam clerk good morning my name is morgan chris and i'm one of the judges on the th circuit court of appeals welcome to the th circuit there to our virtual courtroom i'm up here in anchorage alaska participating this way and i'm delighted to be joined by my colleague john owens judge john i want to see who's chambers are in san diego and we both want to welcome and faint judge joe pa talian who's on top of all of his other duties agreed to volunteer to sit with us few days this week we appreciate that help very very much i just want to do a quick sound check counsel can you both hear me i should have mr jaffe yes i can hear your honor ok great and both my colleagues can hear mr jaffe as well is that right ok that sounds real good and we should have i think mr bronco as well can you hear us yes your honor i can perfect ok we're ready to roll then live if i could just start with a little bit of housekeeping that i need to get out of the way before we hear our st argument i'd like to make clear on the record that we have agreed to submit three cases today without argument eighteen dash  i can only do so in exceptional circumstances and the best and the test identified in that case looks at two factors one the likelihood of success and two the ability of the litigant to articulate his or her claims pro se in light of the complexity of the legal issues involved the court's order in this instance looked at neither one of those factors analyzing either the likelihood of success nor the ability of the petitioner to articulate his claims and therefore because that is an erroneous application this and if you could cut straight to that chase on this st part he argues that it eventually the district court did consider the least the nd factor because he said this is something about you can participate in this two day trial or something like that and paraphrasing his comment you know the quote and to end i argue to the effect that that is a substitute for the notion that her paraphrased statement of the of the judge's assessment that this pro se litigant could participate because it the question right is the ability to represent in light of the complexity of the issues and that was a way to say i'm not that complex so that's a that's a rambling question but what's your response to that place you know there are two responses that number one is looking at the court's order itself the quote the defendant mr hopkins pointed to is in the context of dealing rejecting mr siegel as request for continuance it says you can participate in the trial so if you look at the way that the order is laid out and again this is  a section of the order that did address his request for continuance and that portion identify different reasons for rejecting the appointment of counsel and in fact it's too late just district court judge not once but case so i think it precludes the analysis the defendant is arguing here because it's not that we have a situation where it's ambiguous what the court was relying on but instead we have a situation where the court identified things that are not a political under the instance should apply the test to find that mr speaker should be appointed counsel and i think there are multiple past the court d to take but i think the best path today would be to apply the test and to find it reversed free likelihood of success of his glance enough and i'm sorry none tell me why he's going to succeed in this case well i think on the likelihood of success factor the st question is if that is actually undisputed that he's sufficiently sort of likelihood of does he make the hurdle so i think two reasons the st is this is a case where you survive the screening for indigent complaints number two this was a case for the defendant did not even move for summary judgment and if it was think i have to give me that the one thing that i wondered about and i went through the entire record looking for this there was this witness matthew attorney matthew leathers and he his deposition video deposition was presented and just going back to judge patel and question is it the case that that deposition testimony that that witness was helpful to mr cigar or what are we missing because i kind of am into the tele and camp at the seem to me like a really tough heavy lift for this president against you so let me don't think it clearly moved the line one way or the other ok but the other point that i would raise in terms of the likelihood of success and this is it is that the likelihood of success for purposes of appointing counsel is not the question of whether the mr seegers complaint survived a motion to dismiss and there was no motion for summary judgment and made it all the way to trial under that standard which which i would submit is a low bar that he's sufficiently shown a likelihood of success and and a gain this is an issue that's not just the other side didn't dispute in their answer in briefs but there was a sufficient likelihood of success here and you know your you your position is that in the last the judge says the magic words and we have to send it back regardless i don't think there are magic words that need to be stated and i do think it has to be apparent that the judge applied the rubble of the tests and here instead of reciting the relevant test but i think if you actually look morning and may it please the court this is joe branco from the maricopa county attorney's office on behalf of defendant appellee officer hopkins surely it would have been better if the district court explicitly addressed the ex exceptional circumstances test but this does not amount to a reversible error sigler is argument simply exalts form over function st signallers request merely stated he needed to get over illness and that's something that the district court did address in its order nd this case is not complex it involved the presentation of competing stories about what happened when hopkins used force against sigler in a courtroom and  adequately represented himself and articulated his claim sufficiently for the jury to consider them on their merits it is unlikely sigler was an empty suit at the trial further concerning the request for a continuance the district distorts the exceptional circumstances inquiry the thrust of stigler's appellate argument in the briefing is backwards looking the seeking a reset to undo discovery problems that occurred months before the requests problems that late appointment o or continuance wouldn't have cured and nd sigler distorts the abuse of discretion standard laced throughout the briefing it seems as though hopkins needs to show this court that the district court's decisions weren't just good but great but it actually requires sigler to show that the decisions weren't just wrong but clearly so this approach fails to follow this court case law and fails to provide any limiting principle if adopted it's difficult to see what record would ever survive sigler scrutiny this court should reject that approach and affirm the district court's decision denying the appointment of counsel continuance requests commenting on the exchange between counsel in the court just now  i want to there's a bit of a discussion about the likelihood of success on the merits i think that at that stage with the record that was in front of the district court judge it was a push we now have the full trial transcripts and further the idea that the likelihood of success on the merits is only futile i believe is the word that's not anywhere in wilborn it's a low court all but there is a hurdle there and further mr stickler was more than capable of representing himself and did in fact represented himself as we pointed out in the briefing it wasn't just the basic of mechanics of the trial that he covered he meaningfully participated in other aspects more advanced aspects of the trial and unless there's anything further from the panel i believe i'm going to yield the remainder of my remember because i forgot beginning to technology i think you're participating pursuant to the pro bono program is that correct that's correct i was remiss in not thanking you for your participation and we have we very much  great so i want to address a couple points and in a couple minutes that i have here the st is on the likelihood of success factor the question is i wasn't i didn't mean to suggest and don't think  or just the futility is the standard but looking at the history of the likelihood of success factor within the test and that was the origin for coming up with that factor so that was where that term came in and i think if you look at the history of the  the procedural failures that preceded his request for a one minute counsel that is directly relevant to his failure to him to articulate his claim so the fact that he was unable to do these things leading up to his requests for counsel that that is just frankly direct evidence that he was unable to sufficiently articulate his claims and then secondly looking at his performance at trial i think it's important to understand that we have to look at the court's order in view of the evidence that was in front of that the trial all came after the request for a point of counsel so i think we have to look at the judge's order in view of the evidence that was before it at the time rather than going back with hindsight two thousand and twenty and then finally on the regarding the complexity of the claims that were at issue here there were two issues that i think are relevant number one d is this goes beyond kind of a defendant's counsel referred to it as a red car blue car case there was medical expert testimony that was presented at trial one counsel would be helpful and then lastly the existence of the trial itself raises additional complexities and legal issues that i submit should be considered as well and i see amount of time but thank you very much