oh yea oh yea oh yea all persons having any manner or form of business before the honorable united states court of appeals for the th circuit are administered john and i and get their attention for the court is now sitting at say the united states and this honorable court thank you and i guess i told everybody to sit down too soon i apologize it was a long baseball game last night so good morning welcome to the four circuit judges floyd richardson and i are pleased to be hearing your cases see  case on the docket is united states versus christopher swear oh  autonomy it's a right with deep historical roots and in fact it's a right that's even of a higher magnitude than the right to counsel the supreme court observed in that case not to force a lawyer on a defendant can only lead him to believe that the law contracts against him and that statement could not be more true in this case mr sware zero is the individual with a long standing distrust of the criminal process and particularly a longstanding and profound distrust of his court appointed counsel and district where o throughout this case has been persistently asserting his right to self representation he's done that clearly and persistently so the court the st question before the word today is whether the word should consider the appeal on an interlocutory basis of the fact that the court is forcing ford appointed lawyers on mr swear in the face of his repeated requests to represent himself and we respectfully submit your honour's that this case  meets all of the cohen factors and it is appropriate for interlocutory consideration by this court on the st factor whether it's a final decision i think that i respectfully submit your honor so that  factors pretty clear to the judge's order in this case makes it clear that the judge decided this issue as a final issue that the judge was not going to revisit this issue that does that mr swear it was going to go to trial with his court appointed attorney and the controlling case is this court's case of cobra industries which simply says that if the order is clear if there is no indication that it will be revisited it's a final order well how is this so order effectively on reviewable after final judgment how does that qualify under that act oh yes your honor a couple of reasons the way that the st reason is the way that the district that the supreme court framed the right to self representation is the right not to have a lawyer forced upon you and the right not to have a lawyer forced upon you is not just merely a trial right this is the supreme court held in the mccaskill case it's a it's a right to the fairness of the criminal process as a right and that could be vindicated on appeal could it not you wouldn't have to show prejudicial simply showed that you were denied your right to represent yourself and you go back to a nd trial i respectfully submit your honor that it can't be vindicated and the simplest the simplest example of that is the fact that if mr swear and went to trial with a court appointed lawyer and was acquitted then his right would be gone it would be evaporated and that's exactly one of the scenarios that the supreme court focused on in the cell case in the forced medication case when it said an individual could be forcibly medically that how is that different from the right to counsel right so you get a sort of stark with the right to counsel cases and tell me you're not a hierarchy of right in suggesting that the right to self representation is somehow more important than the right to counsel you are that you know that and that as well i thought you might go that's the sort of premise for you if it's not then you've got trouble here but yours is based on this idea that somehow the right to represent yourself not mentioned in the constitution is more important than the right to counsel which is represent mentioned in the constitution yes your own absolutely and i think the makes that clear beyond old beyond all doubt i think if the discussion in florida of the right to self representation versus the right to counsel the way the forensic case describes the right to counsel is merely as a tool that helps the defendant meet the charges against him the attorney is simply a tool whereas the historical roots the historical underpinnings of the right to self representation is much deeper than the right to counsel that's what the flor case holds and secondly your honor that with respect i don't hold that there's a hierarchy i think it clearly implies that the historical discussion in florida clearly implies that in the way that it talks about the lower being when he would fall in the rules of conduct your honor i think the conduct is the conduct we don't deny i think it's interesting between the government's briefs and our briefs there's really no dispute as to the conduct that occurred and i would even concede your honor that if the district court judge in this case said i am basing my right i'm basing this decision on your past conduct and i'm basing this decision on the finding that you are able to conform your conduct even though you're behaving yourself now you're unable to conform your conduct that might be sufficient and if the district court then went on to find under forever standard that he was engaging in serious obstruction is misconduct but that's not what happened here the district court judge in this case said i'm aware of your past conduct read the record i know what's going on but you've turned a new leaf and in fact when the government got up and said started relying on his past conduct the district court judge in this case quite frankly i think i know his past conduct but i but his behavior here in court today militates in his favor and so that's our issue with with the substantive finding in this case is that if you're going to take away something as fundamental as the far right or right if you're going to deny a person's request for self representation it needs to be done on a both a legally and a factually valid basis and the order has to be clear and the order has to make appropriate factual findings and what we have in this case is the district court saying i'm aware of the past record but this defendant has turned a new leaf and but i'm going to deny the right because of his quote unquote hesitancy to answer questions focus a little bit on the actual the actual order in this case which was which is a joint appendix and the page i'm looking at is two hundred and three in the judge's written finding the judge says in light of the four reading factors and upon observing the defendant speak demeanor assessing his credibility and most importantly discerning his hesitancy to commit to follow the rules of order the court finds the defendant has not met the applicable standards to establish that he is capable of representing himself so that for the question then arises what are the applicable standards and then the court goes on to say among other things he could not stick state with certainty whether he reviewed the federal rules of evidence nor could remember the specifics about the federal rules of criminal procedure that's not a valid basis to deny a person the right to self representation that this court's precedents say that and the supreme court's precedents say that a person's unfamiliar the rules of procedure or the rules of evidence is not a sufficient basis to deny the forever right and then the court goes on to say most significantly during many of the defendant's responses to the inquiries the defendant pointedly vacillated whether he would be a pearing to the applicable rules of court and i would respectfully submit their your honors that vacillation as to whether you're going to submit to the rules of court number one again there has to be clarity which rules of court are they valid rules or are they not and is not sufficient to meet the standard of forever which is serious obstructionist misconduct and there has never been a finding in this case by judge alston that mr where engaged in serious says rules of court the court is referring to something that's not even a valid basis to deny the forever right so our position here is simple is that if a poor is going to deny this right it has to do so clearly and it to late its reasoning clearly and the analogy to that your honour's is the is the chapman case from this court which was a forced medication case in which this court reversed because the district board did not articulate its reasoning why there were no cases in terms of representation i do and i don't your honor on the one hand i accept the government's distinction that a person who is denied self representation in the civil context may effectively lose the chance to litigate their case so in that sense it's troop well the reason i asked a question save that you only side siltation that's correct your honor we cited civil cases because we our position is that if a person is entitled to represent himself pro se in a civil case then certainly certainly a person should be allowed to represent himself pro se in a criminal case where their freedom is at stake and where they have an actual constitutional right unlike the civil case in  criminal case they have a constitutional right to represent themself that's in the th and then and to further answer your honor's question i think the on balance given the fundamental nature of the right and the importance of what's at stake  yes it doesn't preclude the defendant from litigating his case from defending himself through an attorney but on the other hand it does take away a right again that has been recognized as i think it's no exaggeration to say super fundamental by the supreme court and that's really why your honour's we submit in light of the cell decision in two thousand and three or two thousand and four i think it's clear that the linchpin of interlocutory appeal pretty foreign pretty strong yes tell us why we shouldn't be guided by that dictum in flanagan absolutely wrong because for a couple reasons number one in the beginning of the flanagan case it's clear and from subsequent case law that flanagan is an extraordinarily narrow case i mean flanagan talks about two hours of counsel but then there's supreme court cases about disqualification of counsel separate case about refusal to disqualify counsel separate case so the all of these separate narrow distinctions had to be made by  requires no showing of prejudice to the defense which would be true in this case a prieto our order of violating the ruling regarding council does not meet the rd condition for coverage by the collateral order exception because it is not effectively unreviewable on appeal upon a final judgment so how why isn't that applicable here i realize flanagan was a different case but the principle seems to be transferable here why not sure your honor there's a simple answer that whatever that reasoning meant and i would submit that reasoning this is logically breaks down because either if it structurally or you don't get it you don't get interlocutory appeal if it's bound up with the merits you don't get interlocutory appeal so you never get interlocutory appeal but we know that's not true because in the cell decision in the cell decision interloc isn't it i when he issues of counsel and whether you have to have cow soul and whether you want to represent yourself i i agree is absolutely different in factually speaking but i think the question for this court in light of sel is what is the magnitude of that right is the magnitude of the right to self representation comparable to that of not to be forcibly medicated or is it comparable to something that's like counsel of choice or some lesser right we respectfully submit your honour's that the magnitude of the right as discussed in forever is similar to forcible medication and ok that's the basis for interlocutory appeal thank you all right thank you sir hear from the but we don't have any precedent though in this circuit right now any published precedent there are three unpublished decisions on point right beside it regarding published cases that's correct your honor but as you pointed out there is the supreme court's decision which is really last term versus louisiana really linked the forever right in the choice of counsel right and so these are both about the th amendment secured autonomy and because they're about autonomy both of them get what is very special in our system a presumed prejudice they don't have to show prejudice on judges and that is how we take account of the importance and the kind of distinct autonomy nature of what flanagan says is you don't get you don't get both the waiver of the he said again and again that the importance of the right is the linchpin in a way and distinguishing it is because for red it is up here in other constitutional rights or of a lower order that is flatly inconsistent with what the supreme court said the question is supposed to be about the effectiveness of the review and i would submit that if the court adopts this theory that if the right is somehow super important or super fundamental defense counsel's words that review is somehow then ineffective the court's going to be in a very difficult position of either explaining why many other constitutional rights which are in the text are not as important as for us or in recognizing new interlocutory appeal exceptions which the supreme court has said shouldn't be done they should be with the utmost scrutiny in the guarded nature of the limited exceptions of the found judgment so for instance i mean a defense a defendant can make any number of constitutional claims a move to dismiss appeal and say these are of course very important rights and i'm i'm suffering or injury because in my view i'm being prosecuted in violation of my rights and i'm potentially detained otherwise my freedom is being restricted so that kind of ranking constitutional rights as a matter of words is really not what the supreme court has asked this court to do in this context instead it's a question of effect of so i thought that kind of the difference  was made clear in the mohawk case the supreme court in two thousand and nine where the court says that the crucial question is not whether an interest is important in the abstract it's whether to firmly view until final judgment so imperils the interest as to justify the cost of immediate appeal of the entire class of relevant orders we routinely require litigants to wait until after final judgment to vindicate valuable rights including rights central to our adversarial system so the question is not whether it's important  it be vindicated and we're talking about a trial right there clearly can be vindication and effective remedy post judgment and that's to order a new trial which is what the supreme court did in front of itself the remedy in that case of the defendant interrupting pretty much every court hearing and routinely talking over the judge three times being removed after the st denial the forever motion in january there's a trial set for march defense actually filed a motion for a new competency hearing because of his views client wasn't even comp and stand trial at that point much less represent the motion was granted the defendant received mental health treatment and when he comes back defense counsel moves to reconsider the for retta which in fact goes to our st point that is not a final motion as a class for that can be reconsidered but at that point there was a rd forever hearing and at the hearing the defendant did refrain from interrupting the court and the court commended him for not interrupting him and said that was something that weighs in his favor but at the same time he was asked five different times by the court will you agree to abide by the rules of court and every time the defendant would posit the same theory he'd been saying for over a year which is that the letter of the law trumps the court's ability to decide  politicized who speaks and in his view if something kind of he has a kind of in the letter of the law gives him this unmitigated right to speak in his own defense and speak over the judge so five times he was asked by the court will you abide rulings going forward and five time he refused to say he would do that so i think what the court's ruling is is that even though he didn't interrupt in this case he has a whole history of interrupting violating the court's rulings and he's refusing to even promise that he won't do it in the future and in that instance i believe that the court was clearly within its discretion to find that the defendant this was the ruling it wasn't just that he has a tape did it was that he was inclined only to find the follow the rules that he thought fair to him so i think it i don't believe the court should get to the merits in this case but i think i'd be remiss if i didn't point out that we had two judges over the life of this case that were signed neither of them was hostile to or any way trying to take away the defendant's rights that he was given every opportunity to make the basic concession that the rules apply to him just like everyone else and he simply refused to do that so it wasn't the court that's forcing a lawyer  st i'll start with the last issue st your honour's that when the when they found that mr swear i was going to hesitant to follow the rules but the government would like that to mean is that the district court made a finding that mr sware owed despite his changed behavior was going to behave like he did in the past which we would concede your honour's might be a valid basis not to allow him to represent himself but that's not what the court found and that's the issue with with this order and that's the issue with this forever hearing is that the court seemed to say i'm familiar with the record but you've turned a corner you're acting differently now and now he's saying well because of your vacillation vacillation and hesitancy to follow the rules of which we don't know if he's referring to valid rules or not valid rules or rules of evidence which aren't a valid basis for consideration i'm going to deny the far right so it's not a sufficient water with when something this important is at stake i'll go back to the to the issue of interlocutory appeal and a couple points the government made the government got up here and said ranking isn't going appropriate thing ranking rights is not an appropriate thing for this court to do that's exactly what the what the supreme court did in the cell case and in fact right  the issue of forced medication was something that couldn't be remedied i mean once you've medicated somebody against their will it's over you can't review it so i doubt it's why i don't think cell really works for you the question isn't it isn't that the determinative question we have to face is can miss error be remedied on appeal and i think the answer to your honor's no and i  respectfully point out i think so does very directly apply because here's and here's an example that i think illustrates the issue if a defendant let's say it's a civil rights case and the defendant is charge can pretty civil rights times charged with trespassing because of his race a place he's not supposed to be and he wants to go to trial and preserve his constitutional right he wants to take he's willing to be convicted and go up on appeal to preserve his constitutional right and he gets an attorney who says you know what i'm going to defend on the merits and the defendant ends up being acquitted on some legal point or some factual point that's not the defendant's wishes and he's acquitted and his right to represent himself and present the case he wants to present he probably wouldn't have a problem well i think you would your honor because in that in that context he would want to tell his story the way he wants it to be told which is to challenge the constitutionality of a racist law and he would be deprived of that opportunity for ever by having an attorney who refuses to do what he wants in this case in another example an individual might not want to blame for example a relative or a close friend his attorney might say the only way for me to effectively represent you is to blame you're your relative or friend and so the defendant ends up going to trial is the lawyer who's imposing something that the defendant is not willing to do even at the risk of conviction so i think these cases illustrate how it's not defendant wanted to enter a guilty plea pro se and that's what he did in that case and so your honor it's not merely just the right that you know you you go to trial or you were or you're convicted we're you know if you're acquitted then you're right to somehow magically vindicated it's exactly like the cell case in that respect where the supreme court said yes we can review for error whether cells forcible medication caused him some kind of at this event a trial we can we can review that after the fact but we can't review the fact that he effectively lost the right by being forcibly medicated i think this case is directly analogous in that respect and in fact i can i can represent to this court that mr swear o and i think it's clear from the record that mr swear oh has ideas about representing himself in this case that are different then that those of his counsel and he's not being allowed to he's not being allowed to vindicate that right and it's  e i would also point out your honour's that the government mentioned that there was we know that post conviction review is effective because this court routinely reviews for right of cases post conviction the same thing can be said of double jeopardy cases the same exact thing can be said of double jeopardy cases where this court routinely reviews them after a conviction but that doesn't mean there's no interlocutory appeal right so that logic just doesn't hold on your honor's thank you for your patience and if there are no further questions i will conclude ok thank you mr carr called the one noted here from the record that you have been court appointed by the court appreciates your service we couldn't do our work without you so thank you very much will come down in great council and then we'll call the next case