Argued and Submitted, Pasadena, California August 28, 2014.
Appeal from the United States District Court for the Central District of California. D.C. No. 2:91-cv-01652-AHM. A. Howard Matz, District Judge, Presiding.
The panel affirmed the district court's grant of California state prisoner Andre Burton's pre-AEDPA habeas corpus petition challenging his conviction and death sentence for robbery and murder, in a case in which Burton invoked his right to represent himself under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
The panel held that the California courts' decision to deny Burton his Faretta rights was not contrary to decisions of the United States Supreme Court, but that the trial judge's denial of the requests on the sole ground that Burton was not ready for trial and would need a continuance, and the California Supreme Court's affirmance of those denials, were contrary to this court's decision in Fritz v. Spalding, 682 F.2d 782 (9th Cir. 1982).
The panel held that because neither the trial court nor the California Supreme Court made any finding that Burton's requests were a mere delay tactic, it was appropriate for the district court to determine the timeliness of Burton's Faretta motions in the first instance. The panel held that the district court was not required under former 28 U.S.C. § 2254(d) to defer to the California Supreme Court's finding, seventeen years after its decision on Burton's direct appeal, that Burton's lawyer, Ronald Slick, had reason to believe that Burton asked to proceed pro se for the purpose of delaying trial, where the postconviction proceedings did not ask whether Burton intended to delay, only whether Slick thought that was Burton's intent. The panel held that the district court erred when it treated the purpose-to-delay question as a mixed question of law and fact. But the panel held that the district court was not required to presume that Burton's requests were a mere delay tactic because, under § 2254(d)(1), the merits of that factual dispute were not resolved in the state postconviction hearing and, under § 2254(d)(2) and (d)(6), Burton was denied a full, fair, and adequate state court hearing on the issue.
The panel held that the district court did not clearly err in finding that Burton's Faretta requests were made for legitimate, not purely dilatory, reasons; and therefore affirmed the district court's conclusion that the requests were timely as a matter of law.
Dissenting, Judge O'Scannlain wrote that the California courts did determine the merits of Burton's purpose in seeking to represent himself, so § 2254(d)(1) provides no basis for withholding deference; and that the California courts did afford Burton a full, fair, and adequate hearing in determining his purpose in seeking self-representation, so the presumption of correctness should apply.
Kamala D. Harris, Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, Chung L. Mar (argued), Deputy Attorney General, Los Angeles, California, for Respondent-Appellant.
Marcia A. Morrissey (argued), Santa Monica, California; Lisa M. Romo, Berkeley, California, for Petitioner-Appellee.
Before: Diarmuid F. O'Scannlain, Johnnie B. Rawlinson, and Jay S. Bybee,
Circuit Judges. Dissent by Judge O'Scannlain.
Jay S. Bybee, Circuit Judge:
Andre Burton was tried and sentenced to death for robbery and murder. Twice before trial and another two times during trial, Burton invoked his constitutional right to represent himself under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Each time, the judge denied the request because Burton needed time to prepare and asked that the trial be continued. On direct appeal, the California Supreme Court affirmed. Burton now seeks habeas corpus relief based on the California Supreme Court's rejection of his Faretta claim. We conclude, in this pre-AEDPA case, that the California Supreme Court's decision was contrary to federal law, and we affirm the district court's grant of the writ.
This case comes before us some thirty-two years after Burton was tried. During those years, Burton filed a direct appeal, was granted a state postconviction hearing, and filed a petition for a federal writ of habeas corpus. His state and federal proceedings are interwoven and complicated, so we will work through the various proceedings in some detail.
A. Pretrial and Trial Proceedings
Burton was arrested in February 1983 for robbery and for the murder of Gulshakar Khwaja. A month later, Ronald Slick was appointed as his counsel, and Burton and his co-defendant, Otis Clements, were arraigned in Los Angeles Superior Court. Both men pleaded not guilty, and trial was set for May 9.
In April, Slick hired Kristina Kleinbauer to investigate Burton's case. Slick gave Kleinbauer a memo with a list of investigative tasks he wanted done. Slick instructed Kleinbauer to conduct a background investigation of Burton and Clements, to determine Burton's participation in the robbery and murder, and to interview other potential witnesses.
On May 9, Slick declared that he was not ready for trial and requested a continuance. The court severed Burton's case from Clements's and continued Burton's trial to July 25. About a month later, in mid-June, Kleinbauer began interviewing witnesses.
When Kleinbauer interviewed Burton, Burton told her that Slick had not visited him at the county jail and that he was not satisfied with Slick's representation in his case. Burton asked Kleinbauer if she could give him advice about what to do. Kleinbauer contacted a local attorney, Jeff Brodey, and Brodey told her that Burton could ask to dismiss his counsel and make a Faretta motion. Kleinbauer took notes, and gave Brodey's advice to Burton in late July.
On July 26 and again on August 2, Slick announced he was ready for trial, but both times the court trailed the case on its own motion. In the meantime, however, Kleinbauer was still interviewing witnesses. On July 25, she interviewed Susana Camacho, an eyewitness, who had told the police she thought the shooter was a white man. On August 8, she interviewed Michael Stewart, a former police officer who told her that the shooter ran right past him carrying a money bag. Stewart told her he was " definite about the fact that the man must have been older because of the gray in his beard." The shooter " looked older than the driver, in his late thirties," was at least six feet tall, and was approximately 180 to 190 pounds. (According to the arrest report, Burton was 19 years old, was just under six feet tall, and weighed 160 pounds.)
On August 10, the case was assigned for trial to Judge D. Sterry Fagan. That same day, Kleinbauer gave a written report of the Camacho and Stewart interviews to Slick. When she gave him the reports, Slick did not tell her that Burton's trial was already underway. She expected Slick to have her follow up on both witnesses and to contact other individuals who might have corroborated their accounts, but he never did so.
When Judge Fagan called Burton's case on August 10, Slick informed the judge that Burton wanted to address the court. Burton then told the court:
Your Honor, I would like to represent myself due to the circumstances of lack of interest as far as the investigation is concerned with my case. There isn't any that should have been taken care of. I haven't spent or had enough time to communicate with my lawyer because he haven't given me the time, because he feel that to me it is not worth it to him, but to me it is worth it, because it is my life that is involved and I don't want to take the fall for the real person in this crime.
The judge told Burton that Slick was an experienced, effective lawyer and then asked, " More importantly, you are not ready for trial today, are you?" Burton replied, " No, sir. I still rather take time to represent myself. I want to represent myself." The judge then responded, " Well, in light of the fact that this matter is here for trial and the 60-day time limit runs Friday and you are not ready for trial, I am going to have to deny your request, Mr. Burton." He added, " And, believe me, I am doing you a favor in doing that."
The next day, Burton asked a second time to represent himself. He told the judge that he had just received the whole file of his case, that this was his first time ever getting any papers, and that he knew " for sure that we have a lack of interest [that] is really out of hand and the court is not paying attention to this." He also told the judge that he suspected he was being framed by Clements, his alleged coconspirator, and that he wanted to investigate his case because " Ron [Slick] is not really on my side for this case." After Slick represented to the court that he had investigated Burton's allegation that he was being framed by Clements, and told the court he was " as prepared as I know how to be," the judge noted that Burton's case had been pending for " almost the maximum period of time allowed to try these cases." The judge repeated to Burton that " you do have a constitutional right to represent yourself, but that is not an unlimited right. You have that right only if you are ready for trial today." Because Burton was " not ready today," the judge denied his motion.
A jury was sworn in on August 15, and trial began on August 16. The guilt phase trial took little more than a day. On the first day, after the court ruled on a motion to suppress Burton's statement to the police, Slick reserved opening argument and the prosecution called five witnesses and put on its entire case-in-chief. Slick conducted very little cross examination of the prosecution's witnesses. At the close of the prosecution's case, Slick asked the judge for a recess so he could interview two witnesses.
After the judge excused the jury, Burton renewed his request to represent himself and " object[ed] . . . to being represented by Mr. Ron Slick." When Burton conceded that he was still not ready to proceed with trial, the court again denied his motion.
The next morning, Burton asked a fourth time to address the court. Before Burton could say anything, the judge told him:
Well, Mr. Burton, we have gone through this twice and I have indicated to you that I am not going to permit you to [proceed pro se] because you have indicated to me that you are not ready to proceed with the trial. If I am in error and if there is a conviction in this case, the Appellate Court will certainly straighten it out, but I don't see that any useful purpose would be served by going through the same conversation again.
Do you have anything new you want to add?
Burton responded that he did not, and the judge denied the motion for the last time.
The jury was then recalled and Slick rested without calling any witnesses. Closing arguments and jury instructions followed. Later the same day, the jury returned a guilty verdict.
Two days later, the entire penalty phase of the trial was conducted. Slick called just two character witnesses: Burton's mother and a Los Angeles County deputy sheriff assigned to Burton's area of the county jail. After a day and a half of deliberating, on August 23, 1983, the jury imposed the death penalty.
Some time later, Kleinbauer was surprised to learn that Burton had been sentenced to death. She was unaware that Burton's trial had even started, and she was still actively investigating his case.
B. Direct Appeal to the California Supreme Court
Burton pursued an appeal to the California Supreme Court, and the California Supreme Court affirmed the judgment in its entirety. See People v. Burton, 48 Cal.3d 843, 258 Cal.Rptr. 184, 771 P.2d 1270 (Cal. 1989). In considering Burton's Faretta claim, the court rejected Burton's argument that the court was bound by our decisions holding that a Faretta motion made before the jury is empaneled must be granted unless it is shown that the motion was made for the purpose of securing delay. Id. at 1276 (citing Armant v. Marquez, 772 F.2d 552, 555 (9th Cir. 1985); Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir. 1982); and Maxwell v. Sumner, 673 F.2d 1031, 1036 (9th Cir. 1982)). The court considered the rule in these cases " too rigid in circumscribing the discretion of the trial court." Id. at 1277.
Instead of applying the federal rule, the court applied its own precedents holding that a request is timely if made a " reasonable time" before trial but is " addressed to the sound discretion of the trial court" if made at a later time. Id. at 1275 (citing People v. Windham, 19 Cal.3d 121, 137 Cal.Rptr. 8, 560 P.2d 1187 (Cal. 1977)). Applying that standard, the court found that Burton did not ask to represent himself a " reasonable time" before trial and that " [t]here was no abuse of discretion in the court's denial of the motion." Id. at 1277. On that basis, the court rejected Burton's Faretta claim.
C. Initial Federal Habeas Petition
Burton filed his original petition for a writ of habeas corpus in the district court in 1992. The district court stayed the federal habeas proceedings, however, pending exhaustion of available state remedies. As the district court put it, " this case [then] lingered, largely because of proceedings in the California State Court system." The stay would not be lifted until more than 16 years later, after Burton filed an amended federal habeas petition in 2008.
D. State Postconviction Proceedings
After the federal habeas proceedings were stayed, Burton filed a state habeas petition with the California Supreme Court. Four years later, the California Supreme Court ordered the State to show cause why Burton should not be granted relief on his claim under People v. Frierson, 39 Cal.3d 803, 218 Cal.Rptr. 73, 705 P.2d 396 (Cal. 1985), that he was denied his right to put on a defense at the guilt phase of trial.
After both sides filed responses, the court appointed a referee to conduct an evidentiary hearing. The court directed the referee to make factual findings on 11 questions, including a question involving Burton's purpose in seeking to represent himself. The sixth reference question asked: " Did Slick have reason to believe that Petitioner's in court requests to represent himself were made for the purpose of delaying trial, rather than dissatisfaction with Slick's trial strategy?" 
The referee conducted a fourteen-day hearing and submitted his report to the California Supreme Court in 2005. In response to the sixth reference question, the referee noted Slick's testimony that Burton was " not emotionally ready to go to trial" and that Burton's four requests to represent himself did not indicate a dissatisfaction with Slick's trial strategy. After reviewing the evidence and testimony at the reference hearing, the referee found that " Petitioner tried to delay the matter by seeking to represent himself, but those requests were denied."
After receiving postreference briefs from the parties, the California Supreme Court, in a published decision, rejected Burton's Frierson claim. In re Burton, 40 Cal.4th 205, 52 Cal.Rptr.3d 86, 147 P.3d 1014. The court agreed with the referee that Slick's statements were corroborated by evidence in the record, and accordingly found that Burton's " Faretta motions reflected a dissatisfaction with Slick's failure to delay the trial, not a dissatisfaction with Slick's trial strategy." Id. at 1026. Two justices disagreed with the majority's findings and dissented. See id. at 1033 (Werdegar, J., dissenting) (" While petitioner certainly indicated in connection with his four Faretta motions on August 10 through 17 that he was not ready to go to trial [pro se] and did not believe the defense case had yet been fully investigated, to read his comments as reflecting only a desire to delay trial, unrelated to any concern over the nature and quality of the representation Slick was providing, is objectively unreasonable." (internal footnote omitted)).
E. Federal Habeas Proceedings
In 2008, Burton filed an amended federal habeas petition. The district court lifted the stay and ordered the parties to brief Burton's first claim--his claim that he was denied his Sixth Amendment right to self-representation under Faretta.
The State made no attempt to defend the California Supreme Court's 1989 decision applying California law to reject Burton's Faretta claim. The State recognized that because Burton filed his original federal habeas petition before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Burton's amended petition was governed by the pre-AEDPA version of 28 U.S.C. § 2254. Accordingly, the State conceded that " the Ninth Circuit's timeliness rule applies here, and Petitioner's first two Faretta motions were timely unless they were made for the purpose of delay."
Nevertheless, the State argued that the district court's ability to apply the federal timeliness rule was significantly constrained by the California Supreme Court's factual findings in connection with its 2006 decision on Burton's Frierson claim--in particular, the court's finding that Burton's Faretta motions reflected a dissatisfaction with Slick's failure to delay trial. Citing former § 2254(d), the State argued to the district court that " [t]hese factual findings regarding Petitioner's purpose for making his Faretta motions are presumed correct on federal habeas review." In light of these factual findings, the State contended, the district court was required to conclude that the California courts' denial of Burton's Faretta motions was consistent with federal law.
After considering the parties' briefs, the district court granted relief on Burton's Faretta claim. The district court agreed with the State that, under pre-AEDPA law, Burton's claim was governed by this Court's decision in Fritz. Accordingly, because the California Supreme Court had " applied its own less accommodating timeliness standard," rather than the federal standard, the district court determined that the California Supreme Court's rejection of Burton's Faretta claim was " clearly erroneous." The district court thus undertook to determine the timeliness of Burton's Faretta requests in the first instance.
The district court determined that it was not required to defer to any finding by the California Supreme Court that Burton's requests were motivated by delay. In the district court's view, the question of Burton's purpose in seeking to represent himself was a mixed question of fact and law subject to de novo federal review. The district court also rejected the referee's crediting of Slick's testimony and discounting of Burton's testimony (and the testimony of Slick's investigator, Kristina Kleinbauer) because those credibility findings lacked a sufficient basis in the record.
The district court reviewed the transcript of Burton's four Faretta hearings and found that Burton had complained that " there was a lack of interest in conducting adequate pre-trial investigation; there had been inadequate communication between him and his lawyer; and Mr. Slick did not believe it was worthwhile to meet with him." The district court determined that the reference hearing testimony corroborated Burton's stated reasons.
For example, the district court noted that although Slick had told the trial judge that he had looked into Burton's statements about Otis Clements, Burton's alleged coconspirator, the testimony at the reference hearing, including Slick's own testimony, revealed that " [n]o investigation, beyond reading the police reports, had been done either into Clements's statements or his background." The district court also found that Burton " knew that his lawyer was not pursuing a complete investigation prior to the commencement of trial and that he was not even contacting witnesses who might present evidence contrary to the prosecutor's narrative of events." The district court found that " Slick did not take even the most de minimis steps" in challenging highly questionable witness identifications and " effectively ignor[ed] the information provided to him by his investigator."
As for Burton's statement in a declaration that he had observed that other inmates' death penalty cases were taking longer, the district court concluded that " this statement is actually consistent with Petitioner's complaints that his lawyer was not conducting adequate investigations and did not care about his case. Even the investigator, Ms. Kleinbauer, was surprised to find out Mr. Slick had commenced the trial so quickly, given that he knew her investigation was incomplete."
In light of these findings, the district court found that " Petitioner's stated reasons for asserting his right to self-representation were legitimate and not made solely for the purpose of delay." The district court concluded that Burton's Faretta request was timely and accordingly gave the State 120 days to either release Burton from custody or grant him a new trial.
The State timely appealed, and the district court granted the State's request to stay its judgment pending resolution of this appeal.
We review de novo a district court's grant or denial of habeas corpus relief. Sanders v. Ratelle, 21 F.3d 1446, 1451 (9th Cir. 1994). We review the district court's resolution of legal questions de novo, and we review the district court's findings of fact for clear error. Seidel v. Merkle, 146 F.3d 750, 753 (9th Cir. 1998); see also Sanders, 21 F.3d at 1451-52; Fed.R.Civ.P. 52(a).
Because Burton filed his federal habeas corpus petition before AEDPA's effective date, we apply the former version of 28 U.S.C. § 2254 and pre-AEDPA law. See Thomas v. Chappell, 678 F.3d 1086, 1100-01 (9th Cir. 2012). Under pre-AEDPA law, a state court's determinations of pure questions of law and mixed questions of law and fact are subject to de novo federal review. Sanders, 21 F.3d at 1451. The state court's findings of fact are ordinarily subject to deference, however, and are presumed to be correct unless they fall within one of eight exceptions listed in former § 2254(d).
We must determine whether the California courts' rejection of Burton's Faretta claim was contrary to " the Constitution or laws . . . of the United States." 28 U.S.C. § 2254(a) (1994). Under the nonretroactivity rule announced in Teague v. Lane, we review state court decisions according to federal law as it existed at the time the petitioner's conviction became final on direct review. 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (holding that " new constitutional rules of criminal procedure will not be applicable to [state criminal] cases which have become final before the new rules are announced" ).
We proceed in two steps. First, we address whether the California courts' decision to deny Burton his Faretta rights was contrary to decisions of the United States Supreme Court. Because we conclude that it was not, we then ask whether that decision was contrary to our own contemporaneous decisions. We conclude that the California courts' decision was contrary to the federal Constitution, as interpreted by our cases.
A. Supreme Court Law
We first consider whether the decisions of the United States Supreme Court dictate the result in this case. What we said nearly two decades ago is still true today: " The only Supreme Court decision to discuss the timeliness of a request to proceed pro se is the Faretta decision itself." Moore v. Calderon, 108 F.3d 261, 265 (9th Cir. 1997).
In Faretta, the Supreme Court noted that the defendant had asked to proceed pro se " weeks before trial" and then held that " [i]n forcing Faretta, under these circumstances, to accept against his will a state-appointed public defender, the California courts deprived him of his constitutional right to conduct his own defense." 422 U.S. at 835-36 (emphasis added). Because we viewed the timing element as essential to the Court's holding in Faretta, we determined in Moore that, after Faretta, the Supreme Court had clearly established that a request to proceed pro se is timely if made " weeks before trial." Moore, 108 F.3d at 265.
Thus, had Burton asked to represent himself weeks before trial and had the trial court denied his request as untimely, we would conclude that the denial was contrary to Faretta and would issue the writ on that basis. Burton did not make his request weeks before trial, however; he made it days before trial--three court days before the jury was empaneled, to be exact. Thus, Faretta does not clearly entitle Burton to relief.
B. Circuit Law
Although the Supreme Court's decision in Faretta does not entitle Burton to relief, this does not end our inquiry. Under the prior version of § 2254, a federal court could issue a writ of habeas corpus " only on the ground that [the state prisoner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (1994). The current version of § 2254 restricts the " violation of the Constitution" that federal courts can remedy to violations of " clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1) (emphasis added). There was no such restriction in the prior law. Accordingly, as we observed, " [u]nder the old version of § 2254(d), we look to the decisions of the Supreme Court and of this court in deciding whether a writ should issue." Moore, 108 F.3d at 264 (emphasis added); see also Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (explaining that " [AEDPA] restricts the source of clearly established law to th[e Supreme] Court's jurisprudence" whereas former § 2254, as interpreted by Teague, did not). We turn now to the state of our own circuit law in 1989, the year Burton's conviction became final on state direct review.
1. Fritz is controlling law
The law in this circuit was clear. Before Burton's conviction became final--indeed, before Burton was even arrested--we held in Fritz v. Spalding that " a motion to proceed pro se is timely if made before the jury is empaneled, unless it is shown to be a tactic to secure delay." 682 F.2d at 784 (citing Maxwell, 673 F.2d at 1036). We clarified that " [d]elay per se is not a sufficient ground for denying a defendant's constitutional right of self-representation" and that a defendant " may not be deprived of that right absent an affirmative showing of purpose to secure delay." Id.
In Fritz, the Washington Court of Appeals had found that the petitioner's Faretta motion " was a tactic 'to delay his scheduled trial and obstruct the orderly course of the administration of justice.'" Id. at 784 (quoting State v. Fritz, 21 Wn.App. 354, 585 P.2d 173, 180 (Wash. Ct.App. 1978)). Nevertheless, we concluded that the state court's purpose-to-delay finding was not entitled to deference because " material facts were not adequately developed" and the state court hearing did not afford him a full, fair, and adequate hearing on the issue. Id. at 785 (citing former 28 U.S.C. § 2254(d)(3) and (d)(6)). We noted that " much of the evidence adduced at the hearings [wa]s pertinent to [the petitioner's] motivation," but " [t]he evidence [wa]s incomplete" because " [n]either [the trial judge nor the court of appeals] made an express inquiry into [the petitioner's] purpose." Id. Because the district court had also applied the wrong legal standard, we remanded to the district court for a determination of the purpose to delay question under the correct standard. Id.
Three years after our decision in Fritz, and still four years before Burton's conviction became final on direct review, we concluded that the California Court of Appeal failed to follow Fritz and, accordingly, we granted the writ. See Armant, 772 F.2d at 554. We noted in Armant that the situation there " differ[ed] from Fritz in a most significant way." Id. at 556. Whereas the state court in Fritz had found that the request was a delay tactic, we observed in Armant that " the state appellate court did not find that the motion was a tactic to delay trial" and " nowhere in the record [wa]s there even a suggestion that Armant made this request for the purpose of delay." Id. On these facts, we concluded, Armant's request was timely as a matter of law. Id.
We have subsequently held that Fritz constitutes established federal law for purposes of former § 2254. See Moore, 108 F.3d at 264 (noting that Fritz and Armant " compel our decision" in pre-AEDPA cases); see also id. (" Although our 'jury empanelment' rule for the timeliness of Faretta motions might have been a 'new rule' when it was announced in 1982, it was not a new rule for Moore because it was announced before his conviction became final." (citations omitted)); id. (noting that " [i]n at least two cases, . . . we have granted the writ when a California court failed to follow the 'jury empanelment' rule" (citing Armant, 772 F.2d at 558, and Maxwell, 673 F.2d at 1036)).
We thus proceed to consider whether the trial judge's denials of Burton's Faretta requests and the California Supreme Court's affirmance of those denials were contrary to our decision in Fritz.
2. The California trial court failed to apply Fritz
Burton's trial judge did precisely what Fritz said not to do: he denied Burton's pre-empanelment request to proceed pro se on the sole ground that Burton was not ready for trial and would need a continuance. Burton asked to represent himself four times, and on all four occasions the trial judge denied his request on this ground.
Burton first asked to represent himself on August 10, 1983--three court days before the jury was empaneled. The judge, after first telling Burton that it would be a big mistake to proceed pro se, asked, " More importantly, you are not ready for trial today, are you?" When Burton answered that he was not, the judge responded, " Well, in light of the fact that this matter is here for trial and the 60-day time limit runs Friday and you are not ready for trial, I am going to have to deny your request, Mr. Burton." 
Burton then cited Faretta and told the judge, " It is my absolute right to represent myself," and the court again responded, " I am aware of that fact, if you were ready for trial today. You are not ready for trial today." After conferring with trial ...