district court erred by mechanically applying the rule stablished in brooks to tennessee to the qualitatively different factual situation presented by this case in brooks brooks had all of the witnesses ready to go so the only issue there was whether or not brooks would testify before or after after his other witnesses here well over did not have his witnesses ready when the time came to present his case and consequently he had asked the trial court for a continuance in order to you would have had to ask for a continuance in order so i you must be really different case that i  my understanding is that this case the prosecution had a rather lengthy list of witnesses and suddenly decided not to call a significant number of them so the court in that up at the end roughly into the day with roughly two hours the defense or your not surprisingly wasn't counting on having his witnesses available because the prosecution was going to take the whole day maybe the next day so he grandmother out of the judge forced to to go forward and make an election with respect to his client which seems to be on all fours with bricks or am i missing oh well  because it really was no forensic what we've got a factual finding here doing nine on hay vs by the trial court that defense counsel never talked to the prosecutor to hire as to how long the state's case in chief was going to take and when i was trying cases i mean it was just a cardinal rule of practice that the two lawyers talk to one another to try and figure out how long are you going to take until you're ready and that didn't happen here because of the defense so i understand it the court here relied upon a a why in court of appeal decision called state versus kiddo to come up with some exemptions or exceptions to bricks is that correct  yes and how how does a how does a hawai'ian state court of appeal have any authority to carbon exception into a united states supreme court case well i i'm nuts first of all i'm but you've got a fifth and sixth amendment right under the constitution for the defendant to put on his case that's growing this case you're saying you've got to put your defendant on right now or he's gone end and you couldn't get hold of the other folks that's are those are important constitutional rights aren't they the right to counsel on their right to avoid self incrimination that's correct and the right to have a jury trial is also important right along with the right to a jury trial comes the right comes the responsibility the defendant to make sure the jury's time is not wasted unnecessarily and that's the one choice that going to happen here they were there was there was two hours left in the day and and the judge didn't didn't want to waste the do you think the jurors times we don't lighted to get out two hours early i think jurors ever seen a juror that wasn't ye done next to ours so that's the trade up but the defendant's fifth and sixth amendment rights versus two hours for the jury well well i think  be clearly you know contrary to the united states for president as to be completely wrong but we're looking krishna we're looking at the intermediate court of appeal decision and the question of whether that was an unreasonable determination of that's correct i don't constitutional law ok i want to focus on that and that's the issue in front of us here that issue was decided adversely in the district court to your side why was this record wrong  the district court was wrong because the the the rule and in brook's does not apply in the same way  this type of situation as it did in the situation of the bronx requires an extension of the rule of bronx i believe in this case in order to come up with a decision that the district court came up with in this case and and that extension is that the court is required in certain circumstances to grant a continuance in order for the defendant to testify last in counsel in what way are the facts in this decided that in that case it was about two hours as well and they decided that that the court did not abuse its discretion in requiring to defend in that identical to the federal rule of evidence six eleven which says that the court shot control the manner in method of interrogation and the order of proof and the question it here based on the findings of  the trial court the circuit court was if counsel had conferred with the prosecutor he would have known that he needed to have defense witnesses available that afternoon to start the defense case and the court found he didn't do that as a result of that he got caught flat footed when the prosecution finished its case in chief and the court said to the defense call your witness and the defense lawyer said i don't have any witnesses and the judge said well i'm not going to waste two hours or two and a half hours of court time and send the jury home early because you didn't prepare your case so call your client if he's going to testify and and so the question is is that a brooks violation in the intermediate court of appeal said it was not and i guess what we're struggling with is why not testify first because we don't want him basically tailoring his testimony by listening to the testimony of the premier previous defense witnesses that's correct but brooks also says you know i forget the exact wording but it it  it pays tribute to rule six eleven and it says we're not saying that the trial judge doesn't have the authority to control the way in which the trial is held and so here we were dealing with a statute that said the defense and it must testify first if he's going to testify at all we ran into a situation where the defense didn't have any witnesses available except the defendant and the judge said if you've got a witness to start the defense case column now we're not we're not going to waste any more time and then there's also a finding by the intermediate courts after an evidentiary hearing that the defendant intended to testify all along so there's no real issue about whether or not he was forced to testify without finding that he wasn't that he really wanted to testify so i don't really see how brooks applies on  objectively unreasonable for the intermediate court of appeal to conclude that brooks did not control in this situation and that it was not improper to order the defense to proceed with its case no i see i did assembling the witnesses lawyers and jurors the same place and same time and this burden counsels against continuances except for compelling reasons consequently broad discretion to be granted trial courts on matters of continuances only in an reasoning an arbitrary reason direct appeal right wrecked and and and and the appellate counsel admitted at the rand hearing that he was not aware of brooks and therefore you know i i think i think that makes a claim  consult with the prosecution about timing and therefore failed my reading of the record suggests that the prosecution's witness list was filed one day prior to this date on which the thing ended early quite literally the day before this occurred he filed this lengthy list when he was his obligation to ask every hour of the prosecuting will attorney when he was going to finish his case i  defendant to either testify first or not at all that happened here and the second part of the rule so you don't think that that case is distinguishable on the on the fact that there was a statute under tennessee law that said in every case where the defense is going to test the defendant's going to testify he must testify first he might be distinguishable in some cases but not here because of the trial judge did was he told the defense counsel at the state court trial know your class can testify now or not at all and if you elect not to testify i will take the continuance but what do you do with the finding that he intended to testify all along i mean unfortunately finding is not in the trial court record that was the record that was made on remit almost ten years later when the i c a remains the case to look into the question of why appellate counsel didn't raise the issue why isn't that fairly considerable by us when we're reviewing the decision of the intermediate court of appeal on hevia because it was unreasonable objectively and reasonable for the i ca to remain and the case to the circuit court to figure out what were the tactical reasons why something happened at the truck when the record was complete in the trial record what case can you cite to me that says it's reversible error for a state court to flesh out the record when it is considering a personal restraint petition in feels that there are issues that are unresolved because the facts have not been settled well the i c a remanded for an inquiry into why mr lubbers appellate counsel didn't raise the brooks issue on appeal and he said why didn't he didn't even know about the rule of brooks but there was nothing in the remit that suggested they ought to go revisit the record established in the trial court in two thousand and one as to why of mr krueger and just to lower what their decisions had been what but why isn't that relevant to both claims both the brooks claim curious because normally the issue that we hear about on haiti is that the state courts failed in their fact finding over adjudication by not reaching issues that are presented to us for the first time on federal hate is relief but now you're making just the opposite that they did too much they they they made the record more complete and that that somehow well let me  justifies the grant of a federal writ of habeas corpus and i'm i'm curious as to what case you would sayit in support of your position well i don't have a case to cite but in what i would tell you is this john the reason why it was a reasonable is because there was no question about why or what low his decisions were in the trial court record but why isn't it why isn't it relevant to us in adjudicating the claims that you are pursuing it's not an federal it's not relevant because the whole inquiry of trial counsel that takes place nine or ten years after the trial is based on the mistaken propositioned by tr that it's his ineffectiveness that's being litigated which it is i mean that may be the motive for that color the witness's testimony but that's for the five trier of fact to to resolve in determining the credibility of the information that he's provided except that mean i can understand why you don't want quote he said on the record because it undercuts your position but i'm still having a but difficult time understanding why in adjudicating the writ we should just ignore what the records show it's a very curious argument it doesn't matter here's why it doesn't matter because the record on to remain and of trial counsel establishes beyond all question of violation of the second prong of the brooks rule which is that the court cannot interfere with the right to counsel as to when that the fed will testify so is your position that brook commands that in every trial the defend then gets to decide even if it results in a delay or disruption of the trial when he's going to testify yes that's right that's the black letter rule him in brooke and that's then how do you explain the language in brooks with regard to we do not mean to suggest that we are interfering or are hamstringing the  judge under rule six eleven is that just dicta that that means nothing and brooke no i don't i think that it what it means something but it doesn't mean that the court can tell the defendant that's happened this case look you have testified now or not at all that's part one of the rule and if ed if and if the defendant says look i'm going to testify but i want to testify last that requires some way from  and get your reaction to that in light of my colleagues come on this is from page six thirteen of bricks the court said well nothing we say here otherwise curtails in any way the ordinary power of a trial judge to set the or proof the accused in his counsel may not be restricted in deciding whether and when in the course of presenting his defense the accused should take the stand i think that bear in any way on your  colloquy with my colleague i believe that's not dispositive of that but isn't that based on the statute in tennessee but the statute in tennessee had no different effect than the trial judge just pronounce of in this case so i don't think that the tent the books case doesn't go off on the fact that it was a statute as opposed to a judge saying it that really i don't think can be the test of whether the constitution applies doesn't apply and so why doesn't have that statute so there's even less reason if you want to look at it that way for the hawaii trial judge to do what he did and and the circumstance of the case involves basically a two hour delay in a circumstance where the state had said they would have fourteen witnesses were both sides had told the trial judge this is going to take four to five days to try this case mr wolf you have a lot of trial experience and you know as well as i have both sides to quickly over designate the number of witnesses they're going to call because if you don't include the witnesses name on the witness list the judge isn't going to let you call an unlisted witness and so it is incumbent upon trial counsel to talk to one another as the trial begins you know who are you going to call today how long that witness going to take are you going to call this guy you're going to call that guy and a lot of those witnesses are as mr benson suggested went because stoll deal chain of custody witnesses where if you get a stipulation by counsel you eliminate five witnesses in one fell swoop and that's that's just all part and parcel of what trial lawyers do is not or is the practice here differ that's right but i think if we're going to weigh the constitutional rights that are at issue here versus two hours when the next day is says it's not going to be a trial session day anyway it's it's just something reasonable to think that that what the trial judge did in the state court here was the right thing to pose that the trial had taken a little longer and the state case in chief and that on thursday morning at nine thirty the prosecution rested but the defense thought they were going to go longer and had no witnesses available for the rest of the trial day at nine thirty which your position be the same i don't think it would be the same but my would not be the same might not be the same and why is that i mean you're saying two hours is unreasonable but all day would be too much well because you should be prepared for the trial of course you should and the question i guess is what meaning do we give to the language that judge smith quoted from in brooks i guess we're really asking what is the scope of that language does it mean brooks trumps in every instance or does it mean that we have to give trial courts reasonable latitude in order to officially conduct trial well i guess i would say that the language in books trumps the ordinary trial judges concerns about fifteen minutes here an hour there but but just in answering my earlier question you would agree that nine thirty on thursday morning if it meant that the rest of the day the courtroom was dark would be unreasonable even under a rock because we don't have to ask answer that question and cite this case well the question is was it objectively unreasonable for the whole why intermediate court of appeals to look at this record look at brooks and say we don't think that the defendant constitutional rights were prejudiced based on the fact that was unreasonable and here's and here's here's the proof of it if a poet council had done what should have been done the same issue that the i c a the i c a panel that decided kido some four months after the first appeal in her case was decided it was exactly the same members so in other words if the brooks issue had been raised in lower his case the first time around then he would know what his icy appeal on brooks because chito one is and it was the same members of the same court and so if you just want to find the easiest way to resolve this case of my favorite is the difference the fact with a judge with a john limb who died in the in the mean time so you had a different  same if it had been the later panel of intermediate appellate judges rather them all i'm saying is that if it demonstrates the prejudice for the failure of appellate counsel to raise it in the first instance in the direct appeal because we know for certain given that that same group decided quito and criticized the exceptions to work brooks or some other courts have adopted and didn't adopt the new selves that that that same group was the group that decided the law has direct right and is it fair to say that the the two pronged so called exceptions to burke's are probably dicta in the sense they weren't necessary to decide to quito case i think that's right affect the court seemed to criticize those exceptions that were not going to adopt them and then later group did adopt them in the sollie case but so it was quite a bit different because there the question of whether the defense would have to testify before his other witness became moot because he did testify before but then the other witnesses testimony was excluded or never came about because he was taking the fifth amendment so there was no other context of this case in which we have to find if we are to over turn the decision of the intermediate court of appeal that there is a brooks we conclude that brooks does not constitute a general problem of visioning as the trial judges regulation of the order of trial in a way that may affect the timing of defendant's testimony now that's a decision from a different circuit it doesn't agree with your view of the case but to the extent that there are differing interpretations of books out there doesn't that mean we have to defer to the decision look at this from the lens of hey b s it's a little different posture is it not well i don't think so and particularly because the court is we're not sitting in direct appeal i guess we might have decided the case another way but to the extent that there are cases out there that go both ways doesn't that lead us to the conclusion that it would not be unreasonable for the i c and of find out to decide the case the way th did i don't think that's you know it was unreasonable and it was unreasonable because the the court had a record both records the trial court record witness and so there's a clear violation of the right to counsel aspect of brooks which is that the trial court can't deprive the defendant of his right to counsel in deciding when he will testify but i sure that gets to the thrust of judge of scanlan's question essentially if we look at the determination by our colleagues on the second circuit and the fact that the i c a essentially adopted the narrower interpretation of brooks that the second circuit adopted why doesn't this case fall into the supreme court's language about where fair minded jurists could disagree how can it be objective leon reasonable for the i c a to agree with the second circuit's interpretation well as i said i think the easiest way to deal with that is just to look at the failure of appellate counsel to render effective assistance and we know for a certainty what would happen if you had done so but you waive i'm i'll ask him when he gets there but i thought this case at a minimum is going to have to go back because for re sentencing yeah but i think it also needs to go back for a new trial because of the of the brooks problem that how does this case now  the trial was in november of two thousand two thousand so we're going to go back and retry a fifteen year old case with a witness who may or may not be available at this point there's a transcript i've been but i don't know yes it does no question about thank you counsel your time has expired mr vinson your time to the community it's more than just a finding of prior sex offenses right it's a it's basically it's a it's a it's a predict it's a prediction you know yeah it's a it's not i mean that is a fact that must be found by some trier of fact that's that's right and in order to enhance or in essence increase the amount of punishment to me that looks like a pretty clear pretty violation i mean if you want to call it a fact you know that in th