we'll hear argument first this morning in case sixteen fifty two ninety four mcwilliams versus dunn is right thank you mr chief justice and may please the court this court in one nine hundred eighty five clearly established in its decision as oklahoma that a poor defendant whose mental health or mental issues were a significant factor in the case is entitled to an expert and an expert independent of the prosecution to assist in the evaluation the preparation and the presentation of an effective defense for the defendant suppose when thought that and it's not your position i understand that it was ambiguous on this point  and then over time it became clear that really the psychiatry's ought to be consulting with the defense and not with the prosecution would we say that the basic right was clearly new right when we say it must be a defense like actors well as your honor guest we don't think it's ambiguous in fact we think it's quite clear when you look at it sorry go ahead bob i'm assuming that we find them because i'm asking then is that is can it be the position that this is just a refinement of the right or is it a new right well if you accept that it was ambiguous which of this is good enough well but whether or not the oklahoma court got it right or wrong when the cases remained it what clearly established we believe starts and ends with this court whether something is clearly established and when the court says where it's a significant factor you have a right to an expert and then goes through the things that that expert is going to do together facts for the defense to analyze facts for the defense to even assist in cross examination of the state's expert witness you can't get more intimately involved in the defense of the case than being involved in the cross examination of witnesses for the in in our case as very much like a can mean there were mental health experts who testified but all of them are state experts and what do you mean by state experts pro rata state or working for the prosecution you know they all work for the state hospital and so that as a result they were people who the lunacy commission which did the first examination are three doctors at the state hospital that make an evaluation and then report to the cour they were paid for work by the state as a price to being working for the prosecution for a particular result even case that's true mr chief justice but had there be an issue which there was in this case and should have been litigated certainly the state has no problem having an expert the state can retain an expert can retain more than one the right that was given in eight was very was very modest it was an expert the defendant can choose the expert but and it's only one expert but it is an expert to at least make the adversary system work to some extent and i with regard to first of all whether there is a mental illness second what it is what the effects of it our own behavior and how it plays into the listener brace even the terminology that you are using both here and in your briefs contain some ambiguity because you keep saying well it established the right to an independent expert but independent can mean really the defense expert or independent can mean independent of both the prosecutor and the defense and what you were saying that he held was that it was a defense expert but and there are certainly parts of the opinion that read like that there's no question that when aig talks about assistance over and over again it reads like a defense expert but the question is did it take really preclude the idea of a completely independent person independent of both the state and the defense well it did because of the way you described what the expert was to do and in the two places where the court said we hope they said we hold and it is a significant factor that the defendant is entitled to an expert that was a guide to both the guilt phase issues and with regard to the penalty phase issues so i think the court and then the court isn't this is not one of these cases that has at least in my opinion a lot of ambiguity because the court could not have been more detailed or specific about what that expert was going to do so we're going to have a single court appointed expert and let's assume if he's not paid by the state here she's an outside expert can that expert ethically under the ethical rules that apply to psychiatrists meet just with the defense and say no you should be sure to do this and then go to me just with the prosecutor do both parties have to be present when did you know what their ethical duties are in this regard i read the article by dr stone and wasn't quite clear on this but i think they have a good duty is that you can't work both sides of the street and that way it's hard to imagine how that could ever work unless you just want the opinion of the expert but once what happens so often with people who start out as neutral experts is they become experts for one side or the other usually the prosecution well you so in your in your reply brief and the page one you've got four examples where you say the language clearly shows what they were meant to be meant to be i don't know what the word is you hope it's not partisan or non objective but aligned experts i guess and the first one they're  supposed to provide assistance that may well be crucial to the defendant's ability to marshal his defense well you can certainly understand the assistance being here is the diagnosis this is what these medical terms mean this is what the rules are and this is why you know it doesn't necessarily mean that they're going to be partisan in helping shape the defense the other one you another one of the four you say is there they're needed to translate a nicol diagnosis into language that will assist the trier of fact well that doesn't entail partisanship of any kind it's simply sort of a medical instruction you know this particular term means this and then the lawyer can go off and develop  her defense but i don't think you can take each one in isolation you have to look at all the things that the court talked about it talked about this person gathering information organizing information meeting with the defense about how this can be used in the defense of the case choosing among viable defenses and even talks about the person as i said talking to the lawyers about how do you cross examined the prosecution's expert mr kind of a a defendant is entitled to to mount a viable defense correct correct and so once there is evidence and hear that there was evidence at the confirms what the expert was saying the court now i need help right because this expert this court appointed expert is telling us that all these things really are irrelevant to my defense but i have a viable claim that a gammick brain injury and that it might have an effect and provide me with a defense so i need a look at ford versus wainwright where the court looked at the question of whether someone was competent to be executed or not and the court found that there for the process to work you could have what florida had which was just accept information from the state's doctors and not accept information from the defendant's doctors and of course this court found in pinetti versus quarterman that that was a clearly established rule what was then just as powerful as concurring opinion was a clue establish rule about the procedures that were to be involved with regard to whether or not a person is competent to be x again i'm not sure that you transfer justice kennedy's question he started with  the observation that there is an argument i know we know you don't accept you don't have to keep saying that that ache was ambiguous if it was what happens to your case how do you win how do you get to the point that this was sufficiently clearly established at the time of this case so that it was an unreasonable application of but i think to prevail under twenty fifty four d we have to show that there was a violation of a clearly established of a federal rule of constitutional rule that was clearly established if not the most cited treatise in this court certainly one of them this is a quote eighty eight appears to have been written so as to be deliberately ambiguous on this point thus leaving the issue open for future consideration so your lafave made a mistake the fifth circuit made a mistake eight state courts the final state courts made mistakes and remained in it was a mistake all of those things not saying whether you're right or wrong on the merits but that body of authority that takes a different position would seem to me to establish that the question was ambiguous at least coming out of vague as opposed to clearly established well you think whe the proposition is clearly established the against and ends with this court i think the ultimate question of whether it was clearly established yes this is been thirty years since ake was decided so of course there are going to be lawyers and judges being what they are there going to be differences but i would point out the weight of the authority is certainly on our side a mystery to the court's finding i'm sorry as i understand your position and you're correct me if i'm wrong you seem to be arguing that what the defendant is entitled to is an expert who will function more or less like the kind of expert who would be retained by the defense if the defense were simply given fun stuff to hire an expert am i right in thinking that well that's not what the case holds but the as in terms of what this expert would do you want an expert who would function more or less like that well too i mean the prosecution can hire as many experts as that warning it can choose experts that will come out the way it once if you're in texas and you want to prove future dangerousness doctors will testify every single time they get a chance that the defendant is a future danger so you can hire that kind of partisan expert yeah well that's what i'm pointing out what i'm getting at i don't see how an expert who is chosen by the court and paid by the court can ever function in anything like that capacity for a defendant and one thing that is perfectly clear from the opinion is that the court would pick the expert and it's one that the court will pick one expert and that's it the defense has to live with it and i just as if you could explain how that kind of an expert can ever function like an expert retained by the defense well it's no different in a court appointed lawyer always different from a lawyer because a lawyer you know a little doesn't have to believe in the client's innocence a lawyer has a professional duty within the bounds of professional responsibility to do everything that can be done to advance the interests of the client but an expert who's going to write a report and is going to testify presumably if the person acts and good faith is going to give an honest opinion yes am i wrong right so what would you say to this court appoint you get one expert at some point what do you say to this expert now i don't really want you to give your neutral opinion i want to give you i want you to give your most defense friendly opinion on this though but i think what the court the court could have gone further but mr bright why is that what why why is it expert to look at whatever information the expert has gathered look at the defendant examine the defendant all those sorts of things and of course you're looking for hopefully a favorable opinion but that's not always going to be the well no i understand i really wasn't my question i of course you could ask the expert you know give me the give me whatever is most favorable give me advice that is most favorable to my client but when it comes down to giving an opinion about whether the individual was sane or aware something that's relevant to mitigation i don't see how the you can ask the expert to do anything other than to give the experts honest professional opinion so it doesn't it's doubt i'm having difficulty seeing how an expert who is appointed by the court you get one could ever function that way and i i read the oral argument transcript in this case and there are several places in the oral argument transcript  a court and the attorney for ache equates and attorney and expert who is appointed by the court with a neutral expert and that seems to be with that kind of an expert would be a neutral expert not an expert who is really part of the defense team but but the the expert described in the ake opinion justice alito is someone who is a part of the defense team  i mean this question of partisan came up of using the word partisan of course parties whether it be the prosecution whether it be a wealthy criminal defendant whether it be a wealthy civil litigation are all going to hire a partisan expert they're going to hire the experts that they think will give them the opinion that will help their side of the case did they did the defendant ask for an expert on page eleven of their brief they quote the respondents the court of appeals which says  there is no indication in the record that the williams could not have called dr coffee or the trial court indicated that it would have considered a motion to present an expert but mcwilliams says the respondent chose not to follow  and your brief one page nine doesn't say did ask for an expert he wanted more time well judge please appoint an expert it into two things just as didier didn't the yes or no well what he did and you can look records which show he's on psychotropic drugs we receive this report we don't know what these terms mean or what it's about we cannot determine for ourselves what we have here and i point out these lawyers were really sent back and then he ended up by saying that is why we renew the motion for a continuance for an expert doesn't mean that where does it say that i just well see where he read all the way through all the motions for a continuance i mean half the pages he asked the judge to appoint you didn't come right out and say the answer is no then is that right well no i don't think that's true because i think everybody knew what exactly was going on we kept saying i need an expert and i need to be everywhere somewhere else does it become apparent that he wants the state well when the case goes up on appeal to the court of criminal appeals both the state of alabama and the defendant brief it on the merits of the eight point the state argues he got everything he's entitled to undertake a neutral expert he's not entitled to anymore the argument for on behalf of mr mcwilliams was that he was entitled to an independent expert and the court of criminal appeals when it decided the case said all he was entitled to was  the expert that he had or no expert at all but would have these state experts examined so the issue is crisply and clearly presented there is presented in the district court is presented in the court of appeals and every court has looked at this on the question of whether he was entitled to an independent expert or not look at these records who understood then who could interpret them for me did i not tell your honor that and shortly thereafter he says your honor gave me no time in which to do that you're on to tell me to be here at two o'clock this afternoon would your honor have wanted me to file a motion for extraordinary expenses to get someone the court i want you to check for with your client and proceeded to sentence him corrections him to death right then without any further and i point out this is service it will but say a moment ago all of this evidence came in in forty eight hours forty eight hours before they get the first report from dr god which is a neuro psychological examination the day before they get records from the mental health of the hospital from the tailor hard mental health hospital and on the day of he had been subpoenaed in the records from the prison since august and this is october seventh he receives those records on the morning of the hearing itself when he gets to court and now he's got two huge piles of records from the hospital and from the prison he's got to report using terminology that he doesn't understand making findings that he doesn't understand and he says i need help we can't possibly go forward in this case because we don't know what we have supposed you know we have others the judge the court appoints the he of the psychiatric court the department at a distinguished private university one person and he comes in he tells the defense counsel now i'm going to explain to you what all these terms mean there are lots of tests i'll tell you about each of these tests and i'm going to have the same meeting with the prosecution later on you can ask me anything you want and then i'm going to testify i'm not sure what my opinion is but i'll get by i think but here's here's the basis for for my opinion and i want you to ask any questions you want about what these tests mean is that sufficient that's not sufficient because so you say there's always a conflict of interest in this the psychologist works for the defending for the defense only no not necessarily a conflict of interest but what aig stands for is two things really the adversary system the court talks about making it possible for the defendant to present his case within the adversary system it's a minimal ability you don't get a partisan expert you don't get to choose the expert but he gets a competent expert to give whatever advice that expert can give to him as he prepares his defense and as he prepares to deal with the prosecution case was to break in and ask you for your interpretation there are two paragraphs on page eighty five which talk about smith the bodie which was a case where there was in fact a neutral expert and and and the court talks about why it doesn't have to pay attention to anybody i'm just curious as to what your interpretation of these paragraphs are because well i'll just leave it like that well i think it was giving baldly some of the body a respectable burial is what it boils down to because the court says we're in fundamental disagreement and points out that bali is a case that comes from one thousand nine hundred fifty three at the time that case was decided there wasn't even a right to counsel for for  defense so the court says this is another time another variables and therefore it's not keep us from from facing taking on this issue of the council if it does follow up on that doesn't imply that a neutral expert would be permissible no i think it says that was the old days those of the horse and buggy days are almost there and this is today and today mental health is hotly contested it takes experts on both sides and for the defense to where we're stopping point then because the common law history our tradition is that often courts could apply and appoint a neutral expert of its own choosing if the defense now has a right to a particular kind of expert partisan expert it's not a partisan expert or if i might just finish then you can tell me where i've gone off the rails where is the stopping point is it is it just psychiatry would we also have to apply the same rule in other kinds of medicine perhaps forensic science  where is the stopping point that you would advocate for the court well i wouldn't advocate it because it's not before the court in this case but it was something we heard the implication we clearly have to consider well but but the thing that the court to consider here is the unique nature of mental health and the fact that experts widely disagree on mental health experts widely disagree on everything that's when you hire them and that may mean when it costs so very  much and many courts state courts and the courts have said and of course of the criminal justice act in the federal courts that where there are other issues there may be other experts as a due process question this is my other question is it due process requires a part responsibilities an ethical and legal way as they should and by the same token an expert who's appointed would stay within would actually in the professional boundaries of the profession of the mill health profession i'd like to reserve so before the trial this case even started the defendant made a motion for a full psychiatric evaluation specific to mitigating circumstances that he was then going to put issue at the penalty phase of the case and he was evaluated for over a month by three psychiatry  and a psychologist for that purpose for developing mitigating circumstances sorry i thought the three psychiatry's were part of the lunacy committee that's correct your honor and i thought that the purpose of the lunacy was to see if he was mentally competent you know that's incorrect your honor the first motion that was presented by the defendant expressly asked for an evaluation with respect to mitigating circumstances and the lunacy commission report also addressed that issue of mitigating the defendant asked for more psychiatric assistance they found a motion for full neuropsychological evaluation including a specific series of psychological tests and that motion was also granted that motion was granted on the same day it was filed september third hundred six which is just a year or so after this court had decided a and then two experts did that there was an extra very general but if we could just focus on that i think it would help to just sort of let's assume for the moment that this defendant did not get what he was asking for which was a defense expert and say whether he entitled him to such an expert and i just want to sort of focus on the money sentence in take you know what the we there for whole sentence and it says here's what we hold we hold that when the defendant makes this preliminary showing that mental health is going to be at issue the state must assure the defendant access to a competent psychiatr who will assist and evaluation preparation and present ation of the defense so assist in evaluation preparation and present ation of the defense and recognizing that we were all smart people and we can read any words we can have an argument that any words mean anything we say still assist in evaluation preparation and presentation of the defense doesn't that mean like you know that's what you would that's the phrase you would use for a counsel to assist in evaluation preparation and present ation of the defense it means somebody on the defendant's i well if i can answer that with two points you are the first is that i think neutral experts are capable of  assisting the defense in a way that an expert assist the defense and that's were capable in the sense that sometimes they might but it's not what you would this is i guess i'm repeating myself but this is the language they use when you're talking about not somebody who sometimes might and is capable of but who in fact will do so to the best of his ability assist the defendant and i think the way an expert assist the defendant is by translating medical diagnosis into language that lawyers can stand the court says a naked psychiatry's gather facts and offer opinions and we would submit that a psychiatrist who does what you ask them to do who does the evaluations that you ask them to do a prepares the reports that you ask them to prepare their assisting your defense just like they did  was a neutral expert that had assisted the defendant the problem in ache was that there was no expert that had assisted the defendant but sometimes the court goes beyond what the facts are and sometimes you know sometimes it issues a hold and that's just precisely calibrated to the facts and sometimes broader and and it seems that what we do is we look at the language we look at what the court said and said given what the court said is this right clearly established and i guess again just to repeat what justice ginsburg said i started counting up the word assist in this opinion and frankly i lost track that every time this opinion talks about this it talks about assisting the defense and assisting the defendant including to cross examine the prosecution it just seems that the premise of the entire opinion is you are on the defense team well there are there are parts of the opinion that we would suggest that also cut in our favor for example the court's discussion of ball the i think  cuts in our favor because the court does distinguish ball the on the grounds that neutral experts testified in that case body was a case where this court a little rest it does you're exactly right and this is why i asked about body i find those two paragraphs incredibly confusing because the first paragraph says distinguishing it because there was a neutral expert and then the second paragraph says anyhow i mean it does it it doesn't use the term over rule but a lower court would be crazed if it relied on  right and the other part of the opinion that we think counts and in our favor is the part with the court says in the paragraph that has this holding in it that we're going to leave it to the states to decide how to implement this rice or what about the point that just kagan raised she was quoting from the opinion why do we have to get into an argument about whether they can be independent or partisan an expert should not he should give his honest opinion that's what they're supposed to do why is that the ri characterization when it was quote from the opinion right why defense has to have somebody who will conduct an appropriate examination assist in evaluation preparation and presentation of the defense and in case we're unclear what that means the court previously said that that person that you object is is the insanity defense viable present testimony to that effect assist in preparing the cross examination of a state psychiatric witness so why do we have to say war of the one that's the question and here it seems to me that this defendant certainly did not get that help well came in they presented a report i read pages from the report and that report was apparently a controversy and did the defendant have someone to do cross examination open with that help him understand the report said and that's the end of the case so if i could just address that just prior so i did just with respect to the timing of the defendant asked for this report asked for a full neuropsychological evaluation and the court granted the motion and the defendant ask  for that report to be provided to the record to the court before the judicial sensing and that's when the report was provided so what so what i'm sorry i'm not being facetious i'm i mean literally i don't know the answer to that so what did he have a person well could look at the report help him cross examine help him understand now who was that person i didn't see one here my point is that person who prepared the report was his expert it was  himself i doubt it did he assisted in the preparation you know these those four things that were listed did he or did he not there was no cross examination and he was there and why was there no a cross exam because he was the defense expert i mean this because he was the defense expert right i mean well usually meet with your expert and go over the testimony with care did that happen here or could that happen here i  end if he had met with the prosecution would that have been a violation of of his ethical obligations dr goff comes into the case because the defendant files a motion for for neuropsychological testing after the penalty phase of trial he wants to get those sides privately prepared i don't think that there was anything prohibiting the prosecution from talking to you would you object to the following disposition of the case we say the issue is not partisan  independent the issue is whether the defense had assistance from a psychologist in the evaluation preparation and presentation of the fence including cross examination of hostile or state  psychiatric witnesses that's what it provides that's clear and what we want you to do court of appeals is decide whether that was so i think that we i would suggest that the right way to to to look  not well i grew thin except for this one cap you do abuse except for this one caviar which is that this is a federal habeas case so the question would be whether the state courts unreasonably applied if they did give if they did not give him psychiatric assistance and pay for it a psychologist who would have done those four things that i just mentioned then they did violate clearly established satisfy not whether dr gone off given his status did the things that he was supposed to do under eight that's exactly right justice alito in my point was that that was the second question presented in the circuit isn't justice briar's question was the second question that the court didn't grant cert on to talk about the question that the court to grant cert on i do think it's important that this issue wasn't presented an ache because this is a federal habeas case and this is the first time that anyone representing a state or the federal government has been able to stand here and argue that a neutral ex actually does satisfy the due process clause and we would submit that the way federal habeas is supposed to work in this area is that the states sort of get a first shot at this or the supreme court to argue our position any jurisdiction that whole of that today that all th eight made it clear and indeed independent is entitled to an independent expert devoted to assisting is and not one providing the same information  impressive that's correct but what we would submit is what these lower courts are doing is they're extending this court's precedent to address this question and we don't have to really address this here because this is not a direct appeal case the question in this case is not whether it should be extended  to say that a neutral expert doesn't satisfy the due process clause the question in this case is whether ache held that and we would submit that akes has nothing about indeed well if it takes is that you have a right to meaningful assistance from a  asika you the defense and then over time it becomes clear to us that that it's like must be in must must be retained for the benefit of the defense only is that a vigorously loses i'm not sure that's the case well i think the reason my friend didn't want to embrace that is because when you use the word refinement i think what you're suggesting justice kennedy is extension and this court has said that you can't extend a precedent in the context of federal habeas and that really is what said i should also point out that there's but again general i mean the actual holding calls for assistance and evaluation preparation and presentation of the defense and seen him if you will is all about we used to think that psychiatric opinions were just one thing but now we know better we know that different psychiatry's have different opinions and it's really important to  arm even an indigent defendant with the tools that he needs to come back at the state and to say and to say as establish what he wants to establish about his mental health i mean that's really the theme of the opinion that you have to give the indigent defendants just as you give the wealthy or defendant the tools that they need to establish what they want to establish about mental health and then that's consistent with protection clause no no no it's not talking about parity all it's saying is that we recognize that the state is going to have experts we recognize that if you had money you would have experts we recognise that mental health is one of those things that people can have different opinions about and that people would really like to have experts and we're going to give this indigent person a single one who will be able to assist him in these ways in evaluating preparing and presenting the defense and our point justice kagan is just that this question presented in this case which is about whether a neutral expert can satisfy that was not at issue an ache it was easy and in the defense here we're about this is you saying this the defendant should be entitled to one competent opinion from a psychotic chris who acts independently of the prosecutor's office that's i think what you're arguing though i mean this is a trick question of course i'm quoting from the dissent ok and what the dissent says is that is precisely what the court doesn't hold and i wish they would i've written dissents like that too we all have but dissent and you say that isn't what the court holds that's at least some evidence that that wasn't what the court help well justice rehnquist former justice rehnquist in that case to senate for three reasons really on this issue the facts was most of his dissent he said that this is a situation where no expert assistance was required at all he also said that this entire discussion was dicta and then of course he does have this phrase where he says that you shouldn't be entitled to a defense consultant or an opposing view but we would suggest that his dis dispositive than the chief justice concurrence in that case which took a very limited view of ache when alternately the way you interpret what is clearly established in one of the court's holdings if you look at the facts of the case and you look at the question presented and there's just no dispute that on the facts of ake the problem was that he did not get any expert panel that just has to be wrong as a statement of how we figure out what clearly established as we don't look at the facts in the kewpie we look at the whole time well as what the holding says you're entitled to somebody who will assist you and evaluate in preparing and present in your defense well with us by justice kagan this is what the court said in lopez about how you evaluate this issue the court said quote sort of the course that you look at quote the specific question presented in court in the case and you see whether it's come up again and so the specific question presented here is about whether a neutral expert can satisfy the due process clause that wasn't presented in a and just to be clear in aig there was a motion filed for a psychiatric evaluation for sanity at the time of the defense and that motion was denied the motion that was filed here for a psychiatric evaluation for mitigating circumstances the two motions both before trial and the for psychological evaluation after the penalty phase both were granted and that's dispositive just rasher one piece of evidence about what a holding it means is what the parties asked for in an adversarial system or parties generally control the outcome of cases in terms of the issues presented and as i understand it defense counsel asked for either a partisan expert or a court appointed expert would have been satisfied with either one is my understanding that's right that's exactly right and the fact that that motion was denied led this court in a tallackson in the in the opinion to say quote there was no expert testimony for either side on a saturday at the time of  would be quite something i have to say general if we say listen when you read our opinions and when you try to figure out what we're saying what you have to do is go back to the kewpie and just to exactly what the kewpie said i think that that would be a shocking way to interpret the squits opinions well just to be clear just i'm not saying you look at the circulation itself i'm saying you look at the question presented on the facts of the case because once again we're not doing statutory interpretation the effort here is not to determine the intent of the author of ache the question here is to determine what a clearly established and just the way you interpret judicial opinions has to be in light of the facts of the case and the question that's actually presented in the case because this is the first time that someone from the state has been able to make this argument to you because it was not presented  aggravating circumstance so this court knows that the way capital punishment works is it's the state's burden to prove an aggravating circumstance and if the state doesn't meet that burden than a defendant isn't eligible for the death penalty in an ache the problem was that this is that the state u psychiatric testimony to meet its burden to make the defendant eligible for the death penalty and the defendant didn't have any any way to rebut that because the defendant's motion had been denied here once again the defendant was trying to put his mental health at issue he was trying to raise it as a mitigating circumstance there is no issue of future dangerousness in this case because the aggravating circumstances that made mr mcwilliams eligible for the death penalty and i'm not asking that particular issue but i thought that the sentencing  trial there there was there was no evaluation ever done for the defendant sanity at the time of the offense and that was a key fact in eight because that was the issue that the defendant wanted to raise the issue wanted to raise his mental health with respect to his sanity at the time of the offense and because his motion was denied although mr mcwilliams motion was granted in his motion was tonight and he couldn't put that issue in front of the court i'm here the motion was granted so he was allowed to put that issue in front of the court he had a full neuropsychological evaluation and the judge at sentencing looked at that report as part of his valuation i just want to do mention one thing that goes back to the timing issue which is this argument from my friend that there was some kind of sandbagging with respect to these records from the department of  and the only thing that he's ever suggested was relevant in those records was the specific prescriptions that the mr mcwilliams was was getting at the department of corrections but the lawyer for mr mcwilliams knew about those drugs well in advance of this hearing if you look at page two sixty nine of the trial transcript well in advance of trial counsel for mr mcwilliams talks about the drugs that his client is getting actually if you look at the joint appendix on page one ninety one a you'll see that the lawyer for m shows up to to the judicial sentencing with articles about the specific drugs that his lawyers and that his a client is being prescribed so he knew about this well in advance of the hearing and another way to evaluate this issue is that on post conviction review you know twenty some odd years after this conviction it was was it was done mr mcwilliams got to hire a partisan expert he got to search the country for the best part of an expert in the hire dr woods an expert from california and and his analysis of this was just that mr mcwilliams had was bipolar but he didn't draw anything significant out of those records that would lead to a change in the in the ultimate outcome here resultantly this case has been pending for over thirty years and and part of the reason why congress said that the federal habeas were going to require clearly established law at the time of the state court's decision is because we're supposed to look at this not you know through twenty seventeen  us to look at this through the eyes of the state court that had to evaluate this issue in one thousand nine hundred one and that we submit is why the fact that all these lower courts were saying that neutral experts could satisfy the due process clause is important because it's true there have been a lot of lower a lot of smart judges have read a and they found it ambiguous and i wonder if this may have been what went on in their minds we know what's going on what was going on in a because we have written opinions like that and we have joined opinions like that this is an opinion that is deliberately ambiguous because there was probably disagreement among the members of the majority about how far they wanted to go you think that's a reasonable hypothesis i think that's a very reasonable hypothesis and i think one way one way that that hypothesis has some merit is that when this precise issue about neutral expert versus partisan experts came back up to this court in grandville where it was directly presented this court didn't grant instead justice marshall was writing a dissent from the sword i see that my my light is on unless the court has any further questions i'll just wrap up and say that this case has been going on for over thirty years this federal habeas case has actually been pending for over about fourteen years because and i think because of a you now have is the amicus brief for the public defender show almost in every state that either that's done in house in a public defender office so you don't even go before a judge and ask for an expert you just go and get it from your boss and there's a budget in the public defender budget for that other places they've got the ways but that most people including there's justice ginsberg pointed out the state of alabama courts have come around to the view and in morris versus appeals regardless of what grant said this can't be right what granville held this in order for this to work in the adversary system and i think that's what we come back to at the end on this case is the proper working  adversary system and this certainly doesn't put the defense in an equal position with the prosecutor not by a long shot but it least gives the defense a shot at least gives them one compliment some mental health expert they can park to understand what the issues are present them as best they can a one of the things it said is that expert may very well testify for the defense so we're talking about everything from gathering information to organizing it to preparing washington and the statement that was made there in this court in two cases and wigan's versus smith and williams versus taylor looked at the rule that is that there had to be an investigation that was clearly established in strickland and then appl