[00:00:03] Speaker 02:
So we are back in session.

[00:00:07] Speaker 02:
Welcome again to the Ninth Circuit.

[00:00:09] Speaker 02:
We welcome Judge Toonheim from Minnesota.

[00:00:13] Speaker 02:
We are very happy that he continues to sit on our court.

[00:00:17] Speaker 02:
It makes things so much easier for us.

[00:00:21] Speaker 02:
We have a long calendar today.

[00:00:23] Speaker 02:
We have seven more cases on the calendar.

[00:00:25] Speaker 02:
We shall take them in the order in which they're on the calendar.

[00:00:29] Speaker 02:
And at some point, we'll see how things go.

[00:00:31] Speaker 02:
But at some point, we will take a break.

[00:00:33] Speaker 02:
I'm not sure yet when that will be.

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But I will consult with my colleagues.

[00:00:37] Speaker 02:
So we have as the first case, we're now going to be taking up Cotham v. Shin and counsel whenever you're ready.

[00:00:46] Speaker 03:
Thank you.

[00:00:46] Speaker 03:
Good morning and may it please the court.

[00:00:48] Speaker 03:
I'm Brent Newton.

[00:00:48] Speaker 03:
I represent Appellant Cotham.

[00:00:51] Speaker 03:
I'll reserve three minutes for rebuttal.

[00:00:54] Speaker 03:
This morning I want to focus on three of the arguments made in my briefs.

[00:00:58] Speaker 03:
First, no deference is due to the Arizona Court of Appeals decision on direct appeal under 28 USC section 2254D1 in view of that court's failure to apply the serious and obstructionist misconduct standard.

[00:01:14] Speaker 03:
Second, and alternatively, no deference is due to the Arizona Court of Appeals decision on Cotham's direct appeal under sections 2254D1 and D2

[00:01:24] Speaker 03:
In view of that court's failure, even to address whether Cotham's asserted reasons for being late to court, his debilitating back pain, untreated by medical staff, and a jailer's assurance that he would get Cotham to court on time, precluded revocation by the trial court of Cotham's fundamental constitutional right to represent himself, and third,

[00:01:46] Speaker 03:
No deference is due to the Arizona Court of Appeals decision on post-conviction review under Section 2254D1 in view of that court's finding no abuse of discretion when the state trial court clearly had misapplied U.S.

[00:02:01] Speaker 03:
Supreme Court precedent on the standard governing effective assistance of direct appeal counsel.

[00:02:07] Speaker 03:
Regarding the Ferretta claim raised by Cawthon,

[00:02:11] Speaker 03:
As this court held in 1989 in the United States versus Fluitt in discussing the meaning of footnote 46 in Ferretta, only a pro se defendant's deliberate, serious, and obstructionist misconduct during judicial proceedings in the courtroom warrant revocation of the defendant's fundamental constitutional right to represent himself.

[00:02:32] Speaker 00:
What Supreme Court case says that?

[00:02:36] Speaker 03:
I'm sorry.

[00:02:36] Speaker 00:
I know Ferretta says that.

[00:02:38] Speaker 00:
Is there a follow on Supreme Court case that

[00:02:41] Speaker 00:
deals with that question?

[00:02:43] Speaker 03:
No, Your Honor, but this court in fluid interpreted that footnote definitively to say what I just said.

[00:02:49] Speaker 02:
Go ahead and finish answering.

[00:02:52] Speaker 03:
Go ahead.

[00:02:52] Speaker 03:
So there is no subsequent Supreme Court case that addressed that issue, but this court's 1989 decision interpreted footnote 46 in that way.

[00:03:01] Speaker 02:
What about the McCaskill case in the Supreme Court where the court said in describing Ferretta

[00:03:08] Speaker 02:
The court held that an accused has a Sixth Amendment right to conduct his own defense provided only that he knowingly and intelligently forgoes his right to counsel and that he is able and willing to abide by the rules of procedure and courtroom protocol.

[00:03:22] Speaker 03:
Well, that is dictated to begin with.

[00:03:23] Speaker 03:
McCaskill was a case not about revocation.

[00:03:26] Speaker 03:
McCaskill was a case about standby counsel.

[00:03:29] Speaker 03:
More importantly, in fluid.

[00:03:30] Speaker 03:
That had already been decided.

[00:03:32] Speaker 03:
It was that actual language was mentioned by the dissent in fluid.

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It was not obviously something the majority felt bound by.

[00:03:39] Speaker 03:
That's precedent that governs this.

[00:03:40] Speaker 02:
But hasn't the Supreme Court told us that we need to look at what the Supreme Court has stated in deciding whether we defer to the state courts?

[00:03:53] Speaker 03:
That's correct, but both the Supreme Court and this Court have held, although you cannot look to Ninth Circuit precedent as providing the authority.

[00:04:02] Speaker 03:
What you can do and should do is look to prior Ninth Circuit precedent discussing what the meaning of prior Supreme Court precedent is.

[00:04:12] Speaker 03:
So FLUIT is very much a relevant decision, not because it holds something independently, but instead because it says what the Supreme Court previously held.

[00:04:20] Speaker 02:
So the Supreme Court's law, in your view, is so clear that no reasonable jurist could have found that your client wasn't behaving in such a way to stop the trial court from ending his self-representation.

[00:04:38] Speaker 02:
No reasonable jurist could find that.

[00:04:40] Speaker 02:
That is correct.

[00:04:41] Speaker 03:
Let me turn to my second issue, which can move this discussion.

[00:04:46] Speaker 03:
What we do know for sure is that any sort of misconduct or failure to follow the rules or whatever it may be, it has to be surely be volitional, be deliberate.

[00:04:57] Speaker 03:
They use the word deliberate in Ferretta.

[00:05:00] Speaker 03:
What we have in this case is where the record shows a defendant was in a wheelchair.

[00:05:06] Speaker 03:
He repeatedly used the wheelchair.

[00:05:08] Speaker 03:
He clearly had a medical issue.

[00:05:11] Speaker 03:
He comes to court late.

[00:05:13] Speaker 03:
The judge says, didn't I warn you, you could not refuse transport.

[00:05:17] Speaker 03:
He then gives an extended explanation, Mr. Cotham did, about A, his back problems, the fact he uses a wheelchair.

[00:05:25] Speaker 03:
The district court or the trial court in this case did not dispute that.

[00:05:30] Speaker 03:
In fact, the trial court said in revoking him, quote, whatever issue it is you were having with your back,

[00:05:37] Speaker 03:
That's on page 112 of the excerpts of record, that he was still going to revoke him.

[00:05:42] Speaker 03:
That cannot.

[00:05:43] Speaker 00:
That's probably because 45 minutes later he did get up and come.

[00:05:49] Speaker 00:
I'm sorry.

[00:05:50] Speaker 00:
He obviously was able to get out of bed.

[00:05:52] Speaker 00:
He did get out of bed.

[00:05:54] Speaker 00:
He did.

[00:05:54] Speaker 00:
Every day.

[00:05:55] Speaker 00:
So it seems that the district court essentially was saying, well, okay, your back is hurting you, but you shouldn't have been able to get out of bed.

[00:06:04] Speaker 03:
Well, but Mr. Copeland's explanation was not just, my back hurts me.

[00:06:08] Speaker 03:
His explanation was he was denied medication by the jail staff, asked for it.

[00:06:13] Speaker 03:
They didn't have a doctor for several days.

[00:06:14] Speaker 03:
He went without medication.

[00:06:16] Speaker 03:
He said when he didn't have medication, it was excruciatingly painful to get out of bed.

[00:06:21] Speaker 03:
Is the trial court required to accept that explanation?

[00:06:25] Speaker 03:
This is what the trial court was required to do.

[00:06:27] Speaker 03:
We have a well established Supreme Court precedent going back decades that says courts indulge in a presumption against waiver of a fundamental constitutional right.

[00:06:38] Speaker 03:
Ferretta itself refers to the right of self-representation as fundamental.

[00:06:42] Speaker 03:
So when a defendant makes a statement like that, that is certainly consistent with the record, i.e.

[00:06:48] Speaker 03:
his using a wheelchair, the trial court had an obligation to conduct some sort of meaningful fact finding.

[00:06:55] Speaker 02:
But the trial court, I'm looking at page 114, and the trial court said, I'm not going to find that your explanation has merit at this point.

[00:07:06] Speaker 03:
Isn't that a finding?

[00:07:08] Speaker 03:
No, that's a ruling of law.

[00:07:10] Speaker 03:
Judges don't say, I don't find merit in your argument when they're talking about credibility.

[00:07:15] Speaker 02:
I'm not sure why that would be so, given the facts that Judge Berzahn talked about, that he had been getting out of bed, he had been given this warning, he came in a few hours later, the judge got to observe him.

[00:07:35] Speaker 02:
I just don't see the trial court simply saying, I'm making a refining of law here.

[00:07:44] Speaker 03:
Well, he certainly did not make a finding of fact in the trial court proceeding.

[00:07:49] Speaker 01:
But ultimately, the decision is whether he refused transport or not, and isn't that a factual question?

[00:07:54] Speaker 03:
Well, the decision is whether he refused transport for a valid reason.

[00:07:59] Speaker 03:
If a person has debilitating back pain, and this was what Mr. Coughlin described at length, and there was nothing to rebut this in the record.

[00:08:07] Speaker 03:
In view of the fact, courts indulge in a presumption against waiver.

[00:08:13] Speaker 03:
The trial court had an obligation to do more than just say, I don't believe you, especially when the surrounding facts, the wheelchair use, indicated he did have a problem.

[00:08:23] Speaker 03:
He said, it takes me long.

[00:08:25] Speaker 00:
But it cuts the other way, because the wheelchair use demonstrates that with the wheelchair, he was able to come to court.

[00:08:31] Speaker 03:
If you're able to get out of bed and get into a wheelchair.

[00:08:34] Speaker 03:
Right.

[00:08:34] Speaker 03:
With debilitating back pain without any medical assistance and without medication, it may take a person.

[00:08:42] Speaker 03:
But that wasn't new.

[00:08:42] Speaker 03:
The day before, he had the same problem.

[00:08:44] Speaker 03:
Well, but back pain comes and goes.

[00:08:46] Speaker 03:
And that's what Mr. Cotham specifically explained.

[00:08:49] Speaker 03:
Mr. Cotham specifically said, this thing sometimes comes and goes.

[00:08:53] Speaker 03:
It was really, really, really painful.

[00:08:55] Speaker 03:
It was debilitating.

[00:08:56] Speaker 03:
I couldn't get it.

[00:08:56] Speaker 03:
It took me a long time to get out at all.

[00:09:00] Speaker 03:
That was never explored.

[00:09:01] Speaker 03:
The district court never did any kind of fact finding.

[00:09:04] Speaker 00:
So you think this is an unreasonable fact finding?

[00:09:06] Speaker 03:
I think it's an unreasonable fact finding under 2254D2.

[00:09:11] Speaker 03:
I think it's an unreasonable matter of law in view of the fluids decision discussion of what serious obstructionist behavior means.

[00:09:22] Speaker 03:
So it's both.

[00:09:23] Speaker 03:
It's both of those things.

[00:09:25] Speaker 03:
There also is a third issue, which is at the very least,

[00:09:29] Speaker 03:
There is a unreasonable decision by the Arizona Court of Appeals about whether this should have been raised on direct appeal.

[00:09:38] Speaker 03:
Now, keep in mind, when a court is on direct appeal in state court, you don't ask the questions that you've just been asking in terms of whether this is a, there's binding Supreme Court precedent.

[00:09:46] Speaker 03:
You're, you are simply deciding whether there's a reasonable probability that Arizona Court of Appeals would have decided this differently had it had a merits brief and a true adversarial testing as opposed- Today you're on to the, the recently certified question.

[00:09:59] Speaker 03:
I am.

[00:10:00] Speaker 03:
I am.

[00:10:01] Speaker 03:
Okay.

[00:10:01] Speaker 03:
At the very least, he gets a new direct appeal, because we have shown there is a reasonable probability, which is less than a preponderance.

[00:10:08] Speaker 03:
And that's not what the state court, the trial judge.

[00:10:10] Speaker 00:
But on that issue, there's California, there's Arizona Court of Appeals on Supreme Court law that seems to say clearly that violation of rules is, or adherence to rules is a basis for evoking threat of rights.

[00:10:28] Speaker 00:
So, just a minute.

[00:10:29] Speaker 03:
Well, but built into that is that it was volitional, that it was deliberate.

[00:10:33] Speaker 03:
And that gets to my point, which is, had this been raised, the district judge jumped the gun.

[00:10:38] Speaker 03:
The district judge should have conducted some sort of meaningful factual inquiry.

[00:10:42] Speaker 00:
I thought we were talking about the appeal now.

[00:10:43] Speaker 03:
We are.

[00:10:44] Speaker 03:
But that is what I would have argued in a direct appeal brief.

[00:10:47] Speaker 03:
I would have argued everything I argued to this court without the AEDPA deference requirement.

[00:10:53] Speaker 03:
Is there a reasonable probability, had, for instance, Fluitt been decided, that the Court of Appeals would have sent it back?

[00:10:58] Speaker 03:
I think there is.

[00:10:59] Speaker 00:
So in other words, your appellate argument is not based on the difference in the standards, but on the facts?

[00:11:09] Speaker 03:
Correct.

[00:11:10] Speaker 00:
It's primarily based... Because on the standards, it didn't seem that the lawyer could have made the argument that the rules violation didn't count, because under Arizona's interpretation of the Supreme Court law, it does, whether right or wrong, right?

[00:11:27] Speaker 03:
I think Arizona's interpretation of it though, this issue was an issue of first impression.

[00:11:33] Speaker 03:
And we cannot say that binding Arizona precedent.

[00:11:36] Speaker 03:
What issue was an issue of first impression?

[00:11:38] Speaker 03:
A defendant who comes into court and says, I showed up late.

[00:11:41] Speaker 00:
Well, I understand this, but that's what you're relying on.

[00:11:43] Speaker 00:
You're not relying on the fact that he could have argued that the rules violation, assuming there was one,

[00:11:56] Speaker 00:
didn't count for further revocation purposes.

[00:11:59] Speaker 03:
That would have been argued as well.

[00:12:01] Speaker 03:
That's a whole separate issue.

[00:12:02] Speaker 00:
But that's what I'm saying there's clear law in Arizona about, so it would have been a futile argument.

[00:12:09] Speaker 03:
I don't know that it would have been a futile argument based upon the fact that it wasn't deliberate, which I guess bleeds into the factual issue.

[00:12:14] Speaker 03:
Okay.

[00:12:15] Speaker 03:
Correct.

[00:12:15] Speaker 03:
All right.

[00:12:16] Speaker 03:
Thank you, counsel.

[00:12:17] Speaker 03:
Thank you.

[00:12:25] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:12:27] Speaker 04:
My name is Jeff Sparks.

[00:12:28] Speaker 04:
I'm with the Arizona Attorney General's Office here on behalf of the respondents at police.

[00:12:33] Speaker 04:
I'll start with claim one, the Ferretta claim, turning first to the legal question, the D1 aspect of the claim.

[00:12:40] Speaker 04:
Ferretta v. California is the clearly established federal law that applies here for EDPA purposes.

[00:12:46] Speaker 04:
And I want to make it clear that the holding of Ferretta, which is what is relevant for the purposes of EDPA under a D1 analysis,

[00:12:54] Speaker 04:
is that a court cannot deny a defendant's timely and unequivocal request to self-represent.

[00:13:03] Speaker 04:
That's not an issue here.

[00:13:04] Speaker 04:
The question was the trial judge's revocation of that right.

[00:13:09] Speaker 04:
Now, Ferretta does include the footnote that has been the subject of discussion here about serious and obstructionist misconduct.

[00:13:17] Speaker 04:
What the court said in Ferretta was that a trial judge may revoke a defendant's right to self-representation.

[00:13:24] Speaker 04:
for that kind of conduct.

[00:13:26] Speaker 04:
It wasn't purporting to state an exclusive list of situations where the right may be revoked.

[00:13:33] Speaker 04:
I think that's relevant here because, again, we're under EDPA, so clearly established federal law is the holdings and nothing about the Arizona Court of Appeals decision on the merits of this claim was inconsistent with the holding of Ferretta.

[00:13:47] Speaker 01:
Isn't it clear that the court did not use a serious and disruptive conduct standard?

[00:13:54] Speaker 04:
The Court of Appeals did not state that standard true.

[00:13:59] Speaker 04:
However, even if that were the clearly established federal law standard for EDPA purposes, simply the fact that the state court didn't state that standard doesn't mean, as a matter of fact, that that was a violation of EDPA or that it was contrary or an unreasonable application of that standard.

[00:14:18] Speaker 04:
You can still be consistent with it.

[00:14:20] Speaker 02:
And the ordinance position here is that the, am I right, that the Supreme Court

[00:14:24] Speaker 02:
has never laid out the precise parameters of when you're on one side of the line and when you're on the other?

[00:14:33] Speaker 04:
That's exactly correct, Your Honor.

[00:14:34] Speaker 04:
And under EDPA principles that the Supreme Court has discussed in other cases, when there is a very broad standard like we have here and a lack of specific guidance for when this right can be revoked, then a review in court under EDPA is required to

[00:14:52] Speaker 04:
apply a considerable amount of deference to the state court's decision.

[00:14:56] Speaker 01:
Are there other courts that have used the fretted decision to essentially find a procedural violation to be in violation of clearly established US Supreme Court law?

[00:15:09] Speaker 04:
The only decision that I'm aware of doing that would be this court's Fluitt decision.

[00:15:14] Speaker 01:
But Fluitt was reviewing a federal court decision, correct?

[00:15:17] Speaker 04:
That's correct.

[00:15:18] Speaker 04:
That's correct.

[00:15:19] Speaker 04:
Right, and I think fluid is a very limited relevance in this situation, first because fluid is not interpreting the actual holding of Ferretta.

[00:15:28] Speaker 04:
So as far as the EDPA goes, it's of minimal value in the analysis here.

[00:15:33] Speaker 04:
And even that being the case, I think fluid, for the reasons we've stated in our brief, is distinguishable there.

[00:15:41] Speaker 04:
The court specifically stated that there was no indication that the defendants had

[00:15:46] Speaker 04:
violated any court rules or anything like that.

[00:15:49] Speaker 04:
It was simply that they hadn't prepared for trial, which is not the case here.

[00:15:54] Speaker 04:
So turning to the factual issue under the D2 portion of the statute, this was a credibility determination by the trial court that the defendant's reason for refusing transport was not meritorious.

[00:16:08] Speaker 04:
We really have

[00:16:10] Speaker 04:
Two layers, I would characterize it, of deference here.

[00:16:14] Speaker 04:
We have the standard deference that a reviewing court gives to a trial judge's credibility determination on a cold record.

[00:16:22] Speaker 04:
On top of that, we have the deference that, under EDPA, is required to be applied to a state court's factual determination.

[00:16:31] Speaker 04:
And here, there's nothing in the record that would justify overturning or undermining the state trial judge's finding.

[00:16:37] Speaker 00:
Does the trial judge make credibility findings?

[00:16:40] Speaker 04:
He did make a credibility finding.

[00:16:41] Speaker 00:
Or did he just say, I don't care?

[00:16:43] Speaker 00:
I mean, you had to get here one way or another.

[00:16:50] Speaker 04:
I think there's some of both of that in the child judge's finding.

[00:16:53] Speaker 04:
I think it was the fact that by saying, I'm finding that your reason doesn't have merit.

[00:16:58] Speaker 04:
I interpret that looking at this record as you weren't here and I don't find that that's a valid reason for you not being here.

[00:17:08] Speaker 01:
Well he had prior experience with the defendant as well so he knew quite well what this was all about.

[00:17:15] Speaker 04:
That's right and I think that's one of the important principles that goes into why when we're looking at a cold record in a situation like this that a trial judge's credibility determination is entitled to deference unless there's something that they're in the record that would seriously undermine that finding which we don't have here.

[00:17:31] Speaker 00:
It appears that there must have been a history to him not showing up because he had given him this admonition the day before.

[00:17:40] Speaker 04:
That would be my assumption.

[00:17:41] Speaker 04:
I mean, yeah, the trial judge was very clear.

[00:17:43] Speaker 04:
The admission was very specific, and especially on this point about refusing transport, the court seemed to emphasize that especially.

[00:17:51] Speaker 04:
So it does appear that there must have been some history.

[00:17:54] Speaker 02:
Would you agree that in making our determination, or I shouldn't phrase it this way, what is your position as to what

[00:18:05] Speaker 02:
He said, I'm not sure temporally when it was, to the trial judge, thank you for revoking.

[00:18:12] Speaker 02:
I don't think I could have handled my own defense.

[00:18:20] Speaker 04:
I don't think that goes to anything like a harmlessness argument, since Ferretta would be a fundamental right.

[00:18:32] Speaker 04:
I think that that can have some relevance when we're reviewing the reasonableness of the state court's decision under ADPA.

[00:18:41] Speaker 04:
And maybe even more so, bleeding into the recently certified claim, the ineffective assistance claim, I think a reasonable counsel looking at this record first can look at it and say, I don't think there's a good argument here for arguing that Florida was violated, especially as interpreted by Arizona law, and second,

[00:19:00] Speaker 04:
when you have the defendant essentially thanking the judge and then later on in the record essentially admitting this was going to be too difficult to do myself.

[00:19:10] Speaker 04:
So I'm glad I have counsel.

[00:19:13] Speaker 00:
The Arizona court seemed clearly to apply the wrong Strickland standard to the appellate IAC claim because it said that the question is whether the case would have come out otherwise and that's not the standard.

[00:19:32] Speaker 00:
The standard is whether there's some likelihood that it would have come out.

[00:19:36] Speaker 04:
The standard is reasonable probability, although.

[00:19:39] Speaker 00:
And what they said was that the standard was whether it would have come out differently.

[00:19:45] Speaker 00:
So I would think that we would have to not do de novo the Strickland part of that claim.

[00:19:58] Speaker 00:
Does that seem right?

[00:20:00] Speaker 04:
I don't think that it is right, Your Honor, and that's because the Supreme Court has stated in EDPA cases that there's no kind of magic words requirement for state courts as long as their decision isn't an unreasonable application of or contrary to Supreme Court precedent.

[00:20:18] Speaker 00:
No, they're supposed to apply the right standard first, and they didn't.

[00:20:24] Speaker 04:
I respectfully disagree that they applied the wrong senator.

[00:20:27] Speaker 04:
I agree that they stated it inarticulately.

[00:20:30] Speaker 04:
However, they cited the applicable case law.

[00:20:36] Speaker 04:
They stated the applicable case law, so I would argue that they maybe used sloppy language.

[00:20:43] Speaker 00:
Suppose I thought that doesn't matter, i.e.

[00:20:46] Speaker 00:
if I was doing this to Ginova, would it come out otherwise?

[00:20:49] Speaker 04:
No.

[00:20:50] Speaker 04:
I don't think that it matters here, and I think that the biggest reason for that is we have

[00:20:54] Speaker 04:
a merits decision on direct appeal from the Arizona Court of Appeals addressing the Ferretta issue, which Cotham raised in his pro-per brief after his appellate counsel filed the Anders brief in finding that it had no merit.

[00:21:06] Speaker 04:
And there's nothing in the record that would suggest that that original decision, that there was a reasonable probability it would have come out differently.

[00:21:15] Speaker 04:
had there been a merits brief filed by counsel.

[00:21:17] Speaker 02:
So if the panel, for example, were to agree with the premise in Judge Rezan's question, one possible result would be something like even assuming there were de novo review, the petitioner still loses.

[00:21:32] Speaker 04:
That's correct, Your Honor.

[00:21:33] Speaker 04:
I think that would be the conclusion, regardless of which standard of review is applied to the ineffective assistance claim.

[00:21:39] Speaker 01:
Essentially, your position here, I think, is that

[00:21:43] Speaker 01:
Cotham's violation of procedural rules revoked his Sixth Amendment rights.

[00:21:49] Speaker 01:
How far does that go?

[00:21:50] Speaker 01:
If that's the principle that the court applies here, that could go a long ways.

[00:21:56] Speaker 01:
I mean, what if someone doesn't stand when he objects in court, he violates a procedural rule, does that revoke his Sixth Amendment rights?

[00:22:05] Speaker 04:
Standing alone, and I think everything else aside, I don't think it would personally.

[00:22:10] Speaker 04:
I think here we're very clearly on safe ground, especially under an EDPA standard.

[00:22:15] Speaker 04:
I mean, showing up is a very, arguably the most important part of following the procedural rules.

[00:22:22] Speaker 04:
If he's not there, court can't proceed.

[00:22:23] Speaker 00:
Isn't the real difference?

[00:22:24] Speaker 00:
I mean, I would be very uncomfortable also with the notion that any violation of a, you know, written down rule somewhere, but here he was specifically told.

[00:22:34] Speaker 00:
about the specific issue.

[00:22:36] Speaker 00:
So it's not really that he was violating a procedure.

[00:22:40] Speaker 00:
I wouldn't even characterize it as violating a procedural rule.

[00:22:42] Speaker 00:
I would characterize it as violating a specific order of the court, which is a different problem, it seems to me.

[00:22:56] Speaker 04:
I would agree that it was violation of a court order, yet more so than a procedural rule.

[00:22:59] Speaker 00:
And I wouldn't get into this question about procedural rules because, you know, if somebody

[00:23:06] Speaker 00:
It doesn't fill out a piece of paper, right?

[00:23:09] Speaker 00:
I don't think the book is read or writes under freddit.

[00:23:13] Speaker 00:
So there's no disruption.

[00:23:15] Speaker 00:
There's no.

[00:23:16] Speaker 01:
Yeah, could you call it disruptive conduct?

[00:23:21] Speaker 04:
I think that's another way to look at it.

[00:23:23] Speaker 04:
So I think you have on the first level, you have a violation of the court's order that you need to be here.

[00:23:28] Speaker 04:
You can't refuse transport, which resulted in disruption.

[00:23:33] Speaker 04:
So I think it's both.

[00:23:34] Speaker 02:
All right.

[00:23:34] Speaker 02:
Thank you, counsel.

[00:23:35] Speaker 02:
Thank you.

[00:23:36] Speaker 02:
Counsel, you're out of time, but we'll give you one minute for rebuttal.

[00:23:39] Speaker 03:
Thank you.

[00:23:39] Speaker 03:
I want to address the point that the court has said.

[00:23:43] Speaker 03:
Well, isn't there some history in this case between the judge and the defendant concerning coming to court on time?

[00:23:49] Speaker 03:
That's pure speculation.

[00:23:51] Speaker 03:
There's nothing in this record that supports that.

[00:23:53] Speaker 00:
And I want to go back to my... I don't remember this, but he didn't say anything like that at the point he said that you can't refuse transport.

[00:23:59] Speaker 00:
He didn't say...

[00:24:00] Speaker 00:
Anything about there being a history of it?

[00:24:01] Speaker 03:
He said it has happened before, but it's clear from the context he did not mean this case.

[00:24:07] Speaker 03:
He was talking generally.

[00:24:09] Speaker 03:
At the very least, it's ambiguous and you can't assume that's that.

[00:24:12] Speaker 03:
But let me go back to my most important argument here.

[00:24:15] Speaker 03:
There is a fundamental requirement that this court indulge in every reasonable presumption against waiver of a fundamental right.

[00:24:22] Speaker 03:
Ferretta called the right to represent yourself a fundamental right.

[00:24:26] Speaker 03:
The record simply leaves too many questions for this trial judge to have done what he did.

[00:24:31] Speaker 03:
He jumped the gun.

[00:24:32] Speaker 03:
He violated that important axiom of constitutional rights.

[00:24:39] Speaker 02:
Thank you.