close a policy that was crafted by this court to protect the right to counsel and to limit effectiveness claims on direct appeal by making a record essentially when it goes to full fruition there are two stages in the first stage  neutral court inquiry of the defendant counsel as to the the pro se claims to determine whether counsel should be pointed if counsel is appointed it proceeds to an evidentiary hearing where the accused has new counsel right to cross examination but there's adversarial state which is a patient in that proceeding he's the hearing that occurred in this case had a mishmash of of of both type both stage one stage two and mr jelly got the worst of both worlds he was essentially required to go pro se without a right to cross examination gets a fully participating static state adversarial what was supposed to have been a preliminary stage one crank going where the only sales advocate in that courtroom was the prosecutor essentially mr jolly was deprived of the very right to counsel the crank it was designed to protect also and separately the judge here considered unknown information about his personal interactions with mr welch or professional interactions i should say with mr welch in other cases in discussing mr and discussing  decision the court said and i quote and being familiar with mr welch now only with respect to that particular case but other cases in which during that time that both of us were in the criminal felony division would have had numerous encounters with one another that the state's full adversarial participation was error and as was the judge use of his experience with mr welch in unrelated cases the error in requiring mr jelly to go pro se and without a right to cross examination is not fixable with harmless error review is unknown what information had there been a proper evidentiary hearing what information is zealous advocate would have uncovered with questions designed to elicit from mr wells perhaps damaging material is also i know what information the judge considered about mr welch i mean how can you review for harmless error something that we don't even know about the judge's experience with mr welch in irrelevant unrelated cases is this case different than th decided to hold never ventured hearing the court erred in requiring basically conflicted counsel to question these two witnesses however that got to an evidentiary hearing and mr ness had conflicted counsel which i submit is better than no counsel at all further in that particular case which was i think we don't have here mr nits in addition to the court questioning these two witnesses in addition  makes no statement that newt's was dissatisfied that his questions were asked so and it just turned out that the record was fully developed as to the underlying claims and then this court found it was harmless beyond a reasonable doubt here we don't know what the court considered it we don't know what is else advocate would have said if we find reversible error so what is up i think in this would you might i think that this jan the honest answer to that is yes and no i think like more me this is not on point with more there was not unlike more there was an inquiry here i think actually the other air moore but for a different reason it's impossible to review that for harmless error because you don't the guy did not the judge did not specify that so i think it's like more in that way in that harmless error of you it's like more of the harm based on this flawed process with the flawed process with you know with the adversarial participation but if you keep this judge then you have the judge who is familiar with the trial proceedings i think is zealous advocate at an evidentiary hearing could at least present new information so the court would not to centrally you know if there's no new and if it gets sent back to stage one with the same judge it's doomed to the same result because he's already made up his mind so unless there's either a different judge or a new information i believe new counsel have new information also incidentally on a few hours this is actually the second appeal in this case the first counsel then it actually goes to the second stage or they have an entry hearing and cranky and we're done with the preliminary hearing and then it's just whether the decision to grant a new trial or not would be manifestly erroneous what was the relief granted and know in fields they grant they changed they remanded it for a new judge and there's a fact that's president feels that was not present here in fields the judge who ultimately had these sort of bad hearing where they had there were supposed to be a preliminary chronicle in the state was supposed to stay participated that judge you heard that was not the judge proceeded it trial and the i believe the second district noted that in a footnote at the end of their opinion  and i believe that that is what informed their choice of remedy however that also would also fix the problem albeit it would risk get another appeal if there's another error but you'd also have a judge who wasn't who wasn't to want to set a trial with your alternate really  yes yes i think in my opinion i think that's better but the relief would also fix the air but i think really just as a rule policy which of course what this court will decide if it gets to the remedy stage i think generally appointing house is going to be a better remedy more often than not but if in the case like fields i think fields pick the right remedy in the event that the judge is gone anyway or the judge is retired and on the way in my opinion yes although i did not raise that the two claims but here's the things i thought those two claims survived this bad process i think who have information is tainted so you can't fairly judge the information that's presented on this record because you had  that mr jolly thought that mr welch should have pursued more added more aggressively so to answer your so i think the problem is it's not the type of air here defeats harmless because it's just not a trustworthy pool of information because i think a state questionnaire and we saw here the state got to present argument the state's goal in questioning mr welch and presenting its evidence was a defeat mr jolly getting new counsel  he didn't represent me appropriately it is that sufficient then to move on to want to counsel i think it well as is so if you're so you're saying if mr jolly had said those if that were his allegations of those are so vague in general that i think what happens then is the court has to ask what exactly do you mean and if you never gets if he never gets more specific than i think then you just deny you that it that he hasn't presented a colorable claim but yet you have to the court has to evaluate and sometimes i think  the my clients are not often often the most articulate so the judge as this court stated in more and interchange is going to be necessary with the defendant and very often with coun what were the facts just out of curiosity the facts and circumstances relating to lewis leaving the court room and you said he went without an attorney right yes ok and lewis was his assigned attorney at the time right yes that was the other sort of work of this case is they already had a lawyer on the space of the could easily just assigned and gotten it over with my understanding of it is that mr welch was counsel for the trial and for the sentencing hearing but then his contract expired with mclean county public defender's office and so ron lewis was appointed to do the sentencing reconsideration hearing just because mr welch was no longer employed was a contract was up and nothing to do with any alleged conflict by that time in reconsideration in the courts is that right and doesn't and doesn't consider any of them then on appeal that gets sent back to reconsider the crankier claims and so they go back and have this they have a hearing in the wake of the  is in the courtroom at the time is told that he can leave and he leaves so i mean that's the thing about it is they already had another lawyer they were paying for who could have just been assigned and then you know either  if l the claims were frivolous he could file the greer motion to withdraw or he could have found one thing to argue and presented evidence on it i think the more i met more or less touches on most of the points i wanted to i wanted to get to i do believe in terms of this court's guidance being necessary to choose what standard of harmless error becomes i i believe that probably the best you know of course this isn't for this court to make the best policy would be something like the cult new rule where state participation is reversible error if it's either invited by the court or relied upon by the court and i think we have both here also something like the moral rule applies to considering welch's conduct in other cases because the stick we use not known less in the rare case the court actually says on the record exactly what the court is talking about  which the court did not do so here the judge did not do so here i don't think that's possible to be fairly reviewed for himself anyway mr jolly asked if this court reversed the decision by the appellate court and the circuit court and appoint counsel are no further questions thank you engages in a lengthy policy with mr jolly l l b runs nineteen pages going through each and every player giving this three tally the opportunity to articulate for the for exactly what he thinks mr well should have done now that is proper procedure in fact that managed to retroactively taint the entire proceeding including the entire column which i think both parties agree that was proper procedure to be getting a hearing and he compares this to golf but this isn't quite the situation that goldman was concerned explained the proceeding was not so unreliable that we could have no confidence in the outcome because the initial colloquy and the trial court's questioning were both proper procedure and were adequate to create a record of the kind that we can have confidence in now your hon a state not objecting to the lack of a state expert witness about united states currency these are the sort of times where we lack confidence but even if the court did find that one of these claims was troubling and now that i would want perhaps to develop the record further without creating a new category of structural error which could then give this court to precedent that's inconsistent with its prior precedent will i would say this is does not rise to the level of the structural error because even though he did not have counsel during this common law proceeding it's not the same as the type of structural error that we talk about when you say denial of counsel during an actual trial because again the question is always has been there are so tainted the proceedings that the entire proceeding is unreliable that we can have no confidence in the outcome and the question is did the lack of counsel here during this portion of the proceeding necessarily taint everything else that happened that we do have and it's also the question of what could have been brought who are mr welch to testify at length about each and every claim counsel says well perhaps if he had had his own counsel  knew that the confidential informant had some credibility issues he was a cop attention informant who was working off of charges he was a drug addict it needed all of that on the stand to leave the state brought out most of the credibility problems and perhaps that he she was certainly before the jury you could say well you know perhaps counsel should have asked him those questions many more times but the information is out there so then of course understand from the question would be would it have made any difference if you had asked mr dunn about his drug problems over and over also also suggest that this particular prank will proceed procedure was actually an evidentiary hearing but it's clear that what was actually happening here was this is a policeman every hearing that went a little it got a little skewed no matter who is doing the questioning of mr welch months to make clear that the purpose of the questioning is just to address the allegations it's not to they're not having all evidentiary hearing at that point but even if co the trial judge does state for the record and he goes through some of the claims individually saying that he doesn't that he believes there batters a trial strategy or lack of merit and in some cases and i would say that in all of the cases the record itself however we would say that given that this court should not create a new category of structural error in order to remain consistent with the rest of us that the court could limit the holding to the facts of this case using supervisory power or again the court would hol at that the error is only reviewable for harmlessness that this isn't a new category of structural error but that in this case looking at the merits of the plans the errors are not harmless beyond a reasonable doubt which would again to c know you said earlier that this is hearing was skewed and that's why i'm trying to one of you know outside of what you said in the briefs just summarize where you think the stands with with more are positions that more  you look at more i think it goes for about age seventy eight eighty one or more is talking about over and over again as we can't review this process because we don't know what that's the real problem or doesn't say we're reminding because we find that this is a enough information that they can review this and it's clear from both moore and from all oh it is that type of procedures are supposed to be flexible but their purpose is to gather information or have an adequate record once the record court ask questions and the state s question is i think at some point the state so we want to respond to each allegation or each assertion i forget the phrase they used to what mr jolly was arguing about so that doesn't make it an evidentiary hearing since there's now going through each of these so so called claims that they're going under oath no the fact that they went through each claim doesn't transfer into an evidentiary hearing that is proper  because more country to state's argument more did talk about the a possibility because no record had been made and i know that the state does not address that same principle applying to the court's reliance on its experience with mr welch and other cases which there is no pool of information on the record as to what we know that that taint is there in the state doesn't address how moore is different from the more talks about the inquiry doesn't talk about whether there's any information in the record regardless of however much taint there is on it also the state in relying on nits doesn't address any of the arguments or factors i've ever made to distinguish the case at this stage of the air the fact of the underlying claim nets was to be allowed to question as to what should have been asked and then made a record as to the two claims and he had conflicted counsel rather than no counsel at all as to the state structural at our air argument i would note that neither that the public court did not say anything about structural or did not base its decision on structural error and i think the structural era sort of a red herring here anyway as this court pointed out in glas or whether something is or is not a structural error for for federal purposes is not binding on this court determining whether or not there should be a policy of having reversible error and whether harmless error analysis is feasible or not and at any rate this clearly was an evidentiary hearing you have a witness testifying you have you know you have you have the court almost sort of substituting almost for cross examination and then after this evidence or stage where mr jolly's gott his claims but not allowed to argue them he was told say what you what your claims are but don't argue them during that first stage then the state presents its evidence in fact the court invited states that you have any evidence and that had its disclaimer about this not being an adventure hearing that proceeded to have evidence and then there was an argument phase and as this quick but court pointed out with respect to motions and people versus patrick it's the substance of the motion that controls not the label and i would submit that we had we had we had an evidentiary phase we had an argument phase this was an evidentiary hearing or least at the end by the end i also take issue with the state's position that at the point that it stopped questioning jolley that it could have reversed there  filed and these are all factors that would or could have potentially depended on facts that were not in front of the court but there's no way the court could have known without having an inquiry of mr of mr welch and this case of the court could not have simply just said i have i've heard enough deny at that point as for me again there is a continuum was a continuum of possible harmless error rules this court can take the state essentially views nits as even though it's doesn't say this as being the broad rule that every error except the narrow exception in more where there is no inquiry at all those were harmless is beyond a reasonable doubt but i think the cult me rule is very very applicable here it's a very similar analysis in both colorable such that we should appoint counsel it's the same basic inquiry even when it's not mandated by statute and i think actually the fact that there statutory support actually just you know makes it even more proprium to apply the law the wisdom of both this court and the legislature and in call me you know to the harmless error analysis in this case the state essentially assumes that the pool of information here is reliable by just saying it's reliable and doesn't take into account either the taint from the court's unknown information or or the fact that the questioning was done by zealous advocate and mr jolly did not have a chance to cross examine them essentially your honour's i think i think i've pretty much run out in the my remarks i would say that this case was more than a little skewed i would say it was a full on evidentiary hearing even if it did start out that way and if there are no further questions