Good morning, if it pleased the Court. My name is Michael Bigelow and I represent the appellant Scott Lopez. I think I would like to reserve two minutes. It may be that I don't. I would ask the Court to be a little flexible. In this case, the appellant was fanned danced, shined on and ignored for almost two years. Maybe a little bit over two years. He repeatedly requested to the right to represent himself. He requested the right to engage in a fretacolically and it was denied until the day of trial when the trial judge decided to engage in a brief colloquy and insufficient colloquy if a colloquy is required at all. But then made the decision on a wrong ground. He decided that he shouldn't defend an appellant shouldn't represent himself because he was going to be in trouble immediately. Prior to that, however, April 26th, he made an unambiguous request to represent himself
. How do we know it was unambiguous because the trial court understood him to be asking for self-representation. The trial court says to counsel, he's not representing himself, you are still the lawyer. November 17, 2004. Well, counsel, we got the chronology. I mean, you did it. I just chatted in your brief of laying it all out. But I guess I'm stuck on this. Why does it matter what happened leading up to the May 30 date? Because that's the date you finally have a ruling. You're on it. Excuse me. I apologize for this
. I've got the most expensive biotics known to man and I've got fresh batteries in them. I need to ask you to really lean into that microphone if you wouldn't mind. I apologize. Is that better? Thank you. Sure. No, I'm sorry. My question was, does it matter what happened leading up to May 30? If we accept your proposition that he made an unequivocal request, don't we then focus on the May 30th ruling? No, we don't. Because up to that point, he has made the request and he has been denied and he's been denied repeatedly. He doesn't have to make another request. He doesn't abandon his right by not making another request. If he hadn't made a request on, actually it was May 17th and trial was May 30th, you understand the chronology
. If he hadn't made the request, his right was denied effectively as of April 26th. Well, but you say denied, but in terms of prejudice to him, that really only arises once trial comes around, right? We're not really interested in prejudice at this point. What we're interested in is whether he has the right to represent himself, Freda makes it very clear he does have that right, if that right is denied, that's the end of the game. If he's not. If it's wrongfully denied, at least. If he is completely out of his mind, does he have a right to represent himself? No. Okay. But he wasn't completely out of his mind. In context, he may have disagreed. He may have been argumentative. There's not a file court in the world who wants to deal with pro-Sate defendant, pro-Pher defendant
. There's not a prosecutor in the world who wants to deal with pro-Pher defendant. Sometimes you prefer to have somebody pro-Sate in a lawyer who lies. Yeah, well, I've been doing this for 45 years and I had ever seen it, Your Honor. I'm sorry. You may not have. You may have. You as a judge. You as a judge want me there, as you as a judge want me there as a buffer between you and the defendant to solve these kinds of problems. Certainly. If I'm necessarily, you know, you're talking about 45 years. I only have 42 years on the bench
. You look me up. And I disagree with you. Your Honor. Let me ask the following question. You say that on April 26th, there was an ambiguous request to represent himself. Yes. Point me to the language that constitutes an ambiguous request. In my supplemental excerpts of records, the motion he filed on April 26th, he attempted to file which miraculously showed up after everybody said, no motion has been filed. It showed up at page, at page, at page, at page. 706, 705 of the clerk's records, Your Honor. That's pretty unambiguous
. But more important. And what does the motion say? Notice of motion, motion to act is counsel pro pro pro pro. Please be advised that on the 26th day of, he's got 2003, April in the above entitled court. This defendant will move the court for an order granting defendant's pro pro status in the above case as soon as their effort can be heard. There's a declaration that goes on. It's a four page declaration that says, I want to represent myself. I know what I'm doing. I'm doing it voluntarily and with full and complete knowledge. That's a pretty, that's a pretty powerful request. Now, here's the other point that during the, nothing in Faretta, nothing in Faretta, or any other Supreme Court President says that counsel can't make the request for the defendant. And don't forget what we're in
. But there are two parts to the request. I want to represent myself. Okay, fine, let's have a colloquy. Now, knowing all of these things in, from the colloquy with the judge, and colloquy with the judge is required. I submit not a form, not a motion. There's no Supreme Court precedent demanding that a form be filed or that a request be made. By a form, it just doesn't exist. I argue that in my brief, I point that out in my brief. Counsel says he wants to represent himself on April 26th. No, Counsel says, and I'm reading, he has expressed an interest in possibly representing himself under Faretta. And the judge understood that to be a request for self-representation
. But you put that in conjunction with the motion that was filed on the 26th. But here's the other problem. And this is in response to your honors question. All during these attempts, all during these attempts, these denials, they're all predicated on the courts say, I will hear your motion, as long as you fill out, I mean, I will hear your request, as long as you prepare a motion. But Faretta doesn't require that. I mean, I'm with you, but so that's why I look at May 30th. And he is pretty damn clear on May 30th that he wants to represent himself. Well, grant you that. All right. But the judge says, I can't find that this waiver would be voluntary because he's telling me, this is involuntary. I mean, that's how I read
. He's saying, I don't want to represent myself. I want good counsel. You're not giving it to me. And so you're coercing me into representing myself. He does say that. And if that is the only thing we focus on, if that is the only thing you focus on, I lose. But you can't ignore what happened during those two years' previous. This circuit's authority says, and I'm sure I said it in a brief someplace, this circuit's authority says that once he makes a request and it is denied, he didn't have to renew it. But you can cite our circuit's authority. We were just reminded yesterday that that has no place. That doesn't say it
. Toe-Ware doesn't say it. It's a Supreme Court case. I don't see any Supreme Court case that says that on the facts that were developed as of May 30th, this trial judge was compelled or required to grant his request. Because other Supreme Court authority says, once it's denied, he has been denied a sixth amendment right to represent himself. Game over. Nothing else matters. But let's, and here goes my two minutes, but let us deal with that day. He has tried every argument he can to be heard by the court. He's tried every argument. Now, is he under duress? What kind of duress is he under? He's not under duress. He is not violated under duress. He's making an argument to the court that hopefully will get the court to listen to him. The court hasn't listened to him to that point. What the court has been playing is a great game of gacha. I'm going to put it off and put it off and put it off and put it off and put it off. And until the defendant comes in and says something that is going to permit me to deny the case and survive on appeal. Now, that's just plain not fair. And that's what this court was doing. This court collectively. Now, his duress was not because, was not because, trial counsel was incompetent, his duress was, trial counsel is not doing what I am asking it to do. I want trial counsel to do something. They're not doing it
. He's making an argument to the court that hopefully will get the court to listen to him. The court hasn't listened to him to that point. What the court has been playing is a great game of gacha. I'm going to put it off and put it off and put it off and put it off and put it off. And until the defendant comes in and says something that is going to permit me to deny the case and survive on appeal. Now, that's just plain not fair. And that's what this court was doing. This court collectively. Now, his duress was not because, was not because, trial counsel was incompetent, his duress was, trial counsel is not doing what I am asking it to do. I want trial counsel to do something. They're not doing it. It's not that they're inadequate. They're just not sufficient to my need. Okay. We've got your argument. Let's hear from the state. We've taken you over time, but we will give you a chance to respond. I appreciate that. Good morning, ma'am. Please the court. Christina, who told me Simpson, I'll be off responding. I'd like to start with that the right to self-representation is not automatic
. It's not that they're inadequate. They're just not sufficient to my need. Okay. We've got your argument. Let's hear from the state. We've taken you over time, but we will give you a chance to respond. I appreciate that. Good morning, ma'am. Please the court. Christina, who told me Simpson, I'll be off responding. I'd like to start with that the right to self-representation is not automatic. And unlike the right to counsel, it does not attach until it has asserted. And a constitutionally valid waiver of counsel is a necessary prerequisite in order to give it be given the right to self-representation. Here, there was no constitutionally valid waiver. That is because defendants got refused to acknowledge the rights and responsibilities that came along with self-representation. What do you do with that motion on April 26th? That actually is a little troublesome to me. I was actually unaware that any motion was actually filed before the trial court. I know that at a later date, a number of motions were written by the defendant and that he ultimately wanted filed by his trial attorney. So you say that motion was, we do not know if the court ever had that April 26th motion? From my reading of the record, it did not appear that the trial court wasn't receipt of any such motion. It was more that it was in receipt of the trial counsel's statements that the defendant was, as you quoted, considering going pro-pror, considering it. However, at that point in time, does that mean we have a factual dispute as to whether or not that motion was before the State trial judge? No, I don't believe there is a factual dispute. You say he didn't have any, says he did
. And unlike the right to counsel, it does not attach until it has asserted. And a constitutionally valid waiver of counsel is a necessary prerequisite in order to give it be given the right to self-representation. Here, there was no constitutionally valid waiver. That is because defendants got refused to acknowledge the rights and responsibilities that came along with self-representation. What do you do with that motion on April 26th? That actually is a little troublesome to me. I was actually unaware that any motion was actually filed before the trial court. I know that at a later date, a number of motions were written by the defendant and that he ultimately wanted filed by his trial attorney. So you say that motion was, we do not know if the court ever had that April 26th motion? From my reading of the record, it did not appear that the trial court wasn't receipt of any such motion. It was more that it was in receipt of the trial counsel's statements that the defendant was, as you quoted, considering going pro-pror, considering it. However, at that point in time, does that mean we have a factual dispute as to whether or not that motion was before the State trial judge? No, I don't believe there is a factual dispute. You say he didn't have any, says he did. That sounds like a dispute. I don't believe there is any factual dispute in this case. I'm sorry, but. Well, it helped me out then because you say there is not in the record that we can't help from the record. You're saying you're sure that the trial court didn't have it? Tell me what you think with respect to that written motion. Did this trial judge have it or not? I will into it, except that the trial judge did have it and proceed under that ground. And in fact, in this case, really, as you're on a point about, it doesn't really matter what occurred on April 26th. That was the day of a waning in this case. The defendant hadn't even spoken to his trial counsel so far as the record of his. I don't say that I don't recollect having said it doesn't matter what happened on that day. Well, what I'm saying is that the key date in this case is May 30th, 2006, two years down the road where he actually made this for at a motion and the court considered it and determined that he could have granted even it wanted to
. That sounds like a dispute. I don't believe there is any factual dispute in this case. I'm sorry, but. Well, it helped me out then because you say there is not in the record that we can't help from the record. You're saying you're sure that the trial court didn't have it? Tell me what you think with respect to that written motion. Did this trial judge have it or not? I will into it, except that the trial judge did have it and proceed under that ground. And in fact, in this case, really, as you're on a point about, it doesn't really matter what occurred on April 26th. That was the day of a waning in this case. The defendant hadn't even spoken to his trial counsel so far as the record of his. I don't say that I don't recollect having said it doesn't matter what happened on that day. Well, what I'm saying is that the key date in this case is May 30th, 2006, two years down the road where he actually made this for at a motion and the court considered it and determined that he could have granted even it wanted to. So the key date is when he makes the for at a motion. The key date is the court's ruling. Yes, Your Honor. No, I asked a different question. Is the key date when he makes the for at a motion? The key date is when the court makes the ruling. So he, so in your view, if he makes a proper for at a motion and the court doesn't get around to ruling it until the day before trial, two years later, the fact that he made a motion two years earlier that's unambiguous doesn't matter. Well, I don't believe there's any Supreme Court authority. United States Supreme Court authority dictating precisely when the trial court has to make a ruling whether it has to be made that day or whether it can be made at a later point in time. Oh, boy. But I'd like to move on to just what exactly the trial courts will. Why don't you stay on that point because it doesn't sound like Judge Fletcher's persuaded of it? I mean, I, I asked the question
. So the key date is when he makes the for at a motion. The key date is the court's ruling. Yes, Your Honor. No, I asked a different question. Is the key date when he makes the for at a motion? The key date is when the court makes the ruling. So he, so in your view, if he makes a proper for at a motion and the court doesn't get around to ruling it until the day before trial, two years later, the fact that he made a motion two years earlier that's unambiguous doesn't matter. Well, I don't believe there's any Supreme Court authority. United States Supreme Court authority dictating precisely when the trial court has to make a ruling whether it has to be made that day or whether it can be made at a later point in time. Oh, boy. But I'd like to move on to just what exactly the trial courts will. Why don't you stay on that point because it doesn't sound like Judge Fletcher's persuaded of it? I mean, I, I asked the question. It was, I don't think it was Judge Fletcher. I think it was me who asked the question to your opponent. What are we supposed to do with this two-year saga, which I think everyone would agree was not fair at all to the defendant. He was getting the run around. You, you can see that, right? So what are we supposed to do with that two-year period leading up to May 30th? Is it just we just ignore everything that happened and focus on that one day, the day of the trial was supposed to start or what? That's what I, that's the question I put and I don't think you've given a satisfactory answer to Judge Fletcher. Yes, Your Honor. I don't believe we should ignore what led up to the May 30th ruling. Of course, we have to take that decision in context and it's in the context of all of these Mars and Faretta kind of requests that were made in conjunction with each other. And I think that it's actually in light of that two-year history that the trial court ruling becomes clear as to why it found that there was no valid waiver. And in this case, there was this long period of time where the defendant was saying, I might want to represent myself, but I don't really want to represent myself. I want to do attorney, you know, X, Y, and Z
. It was, I don't think it was Judge Fletcher. I think it was me who asked the question to your opponent. What are we supposed to do with this two-year saga, which I think everyone would agree was not fair at all to the defendant. He was getting the run around. You, you can see that, right? So what are we supposed to do with that two-year period leading up to May 30th? Is it just we just ignore everything that happened and focus on that one day, the day of the trial was supposed to start or what? That's what I, that's the question I put and I don't think you've given a satisfactory answer to Judge Fletcher. Yes, Your Honor. I don't believe we should ignore what led up to the May 30th ruling. Of course, we have to take that decision in context and it's in the context of all of these Mars and Faretta kind of requests that were made in conjunction with each other. And I think that it's actually in light of that two-year history that the trial court ruling becomes clear as to why it found that there was no valid waiver. And in this case, there was this long period of time where the defendant was saying, I might want to represent myself, but I don't really want to represent myself. I want to do attorney, you know, X, Y, and Z. And I think that when you consider the record and its totality that that is when it becomes clear that the trial court's ruling was correct in the sense that the defendant never was able to take the step of actually acknowledging the responsibilities of self-representation, which is a prerequisite to the granting of his Faretta request. And although that there was this long period of time where the court kind of didn't exactly engage him too deeply as to what he wanted, I believe that from the record, you can see that the court was more concerned with protecting the defendant's rights and in making sure that he really understood what he was getting into before just accepting his statement that, you know, I might want to go proper. And I think the key finding here is that not only was there this lack of a knowing and intelligent waiver, but there was also kind of this emotional aspect to it where these requests and these statements were made in the context of the denial of a Marsden motion or in a kind of an emotional outburst. And I know that cited some case authority in my briefing about how one statement is made in conjunction with an emotional outburst that there's, that is something to be taken into consideration as to whether the, you know, determination as to this came from an actual desire for self-representation or whether the defendant's statements are more of a, you know, outburst in the sense of, please give me a new attorney, and if you don't, I'm going to go proper or threat, you know, to do some sort of action. And in this case, I think it can be found based on the record and totality that there was not an actual unequivocal request for self-representation that was also combined with the knowing and intelligent valid waiver. And in that case, that's why habeas really is not warranted. If there are no further questions, everyone, any submit? Thank you. Thank you. Two minutes. I really appreciate that. The defendant never once said, I don't want to represent myself
. And I think that when you consider the record and its totality that that is when it becomes clear that the trial court's ruling was correct in the sense that the defendant never was able to take the step of actually acknowledging the responsibilities of self-representation, which is a prerequisite to the granting of his Faretta request. And although that there was this long period of time where the court kind of didn't exactly engage him too deeply as to what he wanted, I believe that from the record, you can see that the court was more concerned with protecting the defendant's rights and in making sure that he really understood what he was getting into before just accepting his statement that, you know, I might want to go proper. And I think the key finding here is that not only was there this lack of a knowing and intelligent waiver, but there was also kind of this emotional aspect to it where these requests and these statements were made in the context of the denial of a Marsden motion or in a kind of an emotional outburst. And I know that cited some case authority in my briefing about how one statement is made in conjunction with an emotional outburst that there's, that is something to be taken into consideration as to whether the, you know, determination as to this came from an actual desire for self-representation or whether the defendant's statements are more of a, you know, outburst in the sense of, please give me a new attorney, and if you don't, I'm going to go proper or threat, you know, to do some sort of action. And in this case, I think it can be found based on the record and totality that there was not an actual unequivocal request for self-representation that was also combined with the knowing and intelligent valid waiver. And in that case, that's why habeas really is not warranted. If there are no further questions, everyone, any submit? Thank you. Thank you. Two minutes. I really appreciate that. The defendant never once said, I don't want to represent myself. Never once said that. All of his requests were, I want to represent myself. And I'm trying to figure out what the position of the trial judges in, even assuming that we have an unambiguous threat emotion filed on April 26th on the day of the arrangement. And at an open court, his attorney says, he's indicated he might possibly want to file a threat emotion. Let's assume that that's an unambiguous threat request right then. What do we do with the succeeding conversations? And there are a lot of them as we go forward, where he seems to be not asking for threat, but rather asking for a margin hearing and asking for a better lawyer. Is it possible consistent with a reasonable interpretation of controlling Supreme Court case law? That that's permissibly interpreted as backing away from what had been, had it been standing alone, an unambiguous threat request? He doesn't say I want a better lawyer. First of all, first of all, a number of those requests were foisted on him by trial counsel. trial counsel comes in, for example, at one point and says, I don't think he understands the difference between threat and maristant. Defendant says, I know the difference. I know what a threat emotion is
. Never once said that. All of his requests were, I want to represent myself. And I'm trying to figure out what the position of the trial judges in, even assuming that we have an unambiguous threat emotion filed on April 26th on the day of the arrangement. And at an open court, his attorney says, he's indicated he might possibly want to file a threat emotion. Let's assume that that's an unambiguous threat request right then. What do we do with the succeeding conversations? And there are a lot of them as we go forward, where he seems to be not asking for threat, but rather asking for a margin hearing and asking for a better lawyer. Is it possible consistent with a reasonable interpretation of controlling Supreme Court case law? That that's permissibly interpreted as backing away from what had been, had it been standing alone, an unambiguous threat request? He doesn't say I want a better lawyer. First of all, first of all, a number of those requests were foisted on him by trial counsel. trial counsel comes in, for example, at one point and says, I don't think he understands the difference between threat and maristant. Defendant says, I know the difference. I know what a threat emotion is. That's what I want to do. Judge says we're going to have a maristant motion. That happens actually a couple of times in different contexts. But he doesn't back away. He exceeds to the court. Of course, says I want, we're going to have a maristant motion. He can't stand up and say, no, we're going to have a maristant motion. I want my threat emotion. He exceeds to the court. He's trying to do what the court wants him to do. But then trial counsel, you know, maristant motion denied
. He goes back and open court and he says, I can't represent myself repeatedly. I'll start. Thank you very much. Thank you very much. Thank both sides for your arguments. Scott versus Lopez now submitted for decision