pereira the issue that we brought forth is that this appearing is not competent to stand trial he has already been tested several times there were several psychologists and four who evaluated him all four of them found that he was intellectually disabled mr baez what can i interrupt you before we get to the merits i have concern about whether we have jurisdiction over this matter because we don't have a final decision from the district court here so how can we exercise  the the matter and also won't let up unless three things that you have to have right for us to have jurisdiction and it's pretty clear that this is a narrow exception and the st is that it must conclusively determine the disputed question even if your client goes through trial and is convicted on appeal he can challenge his competency right and any i am during that trial if the trial court thinks that he has behavior that he is exhibiting that car or his own counsel reports to the truck more that he is not competent the district court not only can it should it has an obligation to re evaluate his competency very different than other cases because my client ok the st problem conclusively determine the disputed question my client is intellectually disabled he's been found to be intellectually disabled by for expert that people go through when they're found incompetent initially in the bureau of prisons he's already gone through all of that he's he's been found to be intellectually disabled on several occasions doesn't there's nothing that's going to change the only thing that's going to change is that his rights to his rights under cooper versus alabama and that is the right not to be tried as an incompetent person is going to be violated he has a due process rights not to be taken to trial if he's not competent and he's been found and even though the district court judge found that he is confident the district court judges findings were based on anecdotal evidence and not on scientific evidence and all of the scientific evidence that's in the record so it is you can hear conflating two concepts one is you know we can we can come to a conclusion about whether someone is intellectually disabled but dan you look at other evidence  and observable behavior just see whether he is competent to stand trial despite that intellectual disability and there's no reason that that can't be reevaluated during the trial if he he can't communicate with the tourney in fact right well your honor the particular facts that are the particular facts of his and assist his attorney and assist in your defense most those facts have already been determined by the i q test the doctor behaviors and all of that both those are there have to be some kind of a doctor behavior in order to determine whether or not a person a person is intellectually disabled but that i q tests are the ones that determine whether or not a person can assist  did not i did not now next question is can you cite to me any case from any other circuit or they have found that under the under the he's got a fax under competency issue that we would have again with respect to the st issue conclusively determine the disputed question because a fact because of the fact that my client is has a static mental incapacity that's not going to improve we are at a place where the court has made a conclusion but under law the trial court has made a decision but respect to his going forward and in a trial trial and he's incompetent so what is do you have for that because the instances in which the supreme court has ruled on are pretty sparse there's double jeopardy and there's  in legislative immunity but i have yet to see anything that would support the position that you're now asserting so as not to st impression yes i believe so because i did not find any are right on point with this and this is a something to due process claim because i mean if we disagreed with you and we said he didn't have a constitutional right to munity from suit that he actually had to go through trial and then raise it on appeal would you agree we lack jurisdiction to hear this appeal no i  think that the the court does have jurisdiction and i'm making that argument that the court does have jurisdiction i understand i understand what you're saying understand that he can bring this up later on but  different this is different because nothing will change nothing will change in the future regarding whether or not he can assist his attorney and whether or not he's intellectually disabled he's go intellectually disabled all all of his life but as it has changed tack them it i mean at least from the government's expert perspective he was incompetent proceed earlier but he's not incompetent proceed now so your argument to this is static in can never change doesn't seem to be borne out by the fact that this and the facts of the case are that the government's deficits that were not as serious as we were saying that they were and that was all based on anecdotal evidence there is no standard for using phone calls to determine that somebody is competent  there's no professional psychological or psychiatric standard for that is the standard that's used to determine and it's nationally in in the case where a person is  intellectually disabled is to use the i q test and the subtests in this in this position in this case that determined that he was not competent was the burble a lack of verbal abilities  skills to proceed to trial but the depth of skills are not the skills that are used in terms of determining whether he has the cognitive ability and that's that's what can and should be used and that's the starting point from where a court could look to see whether or not there has been error here and that is whether or not that it was based on scientific as opposed to just d this case if if the court doesn't review the case now i will come back and do the same argument in the future but the thing about that is that where it is at a position right now where nothing is going to change in terms of his ability to assist counsel and it would be a violation of two days nearly two years testimony substantial evidence and briefing the district courts correctly found that mr prayer was competent to proceed to trial you know ask this court's in the middle of this case proceeding to trial to reverse the district court's facto finding listening to opposing counsel arguments it appears to me that this argument is simply too strong to follow mr perry as logic if this court currently finds him to be competent his status is intellectually disabled which all the experts orders that meet this standard must have three things they must conclusively determine the speed of question they must resolve an important issue separately from the merits and be effectively and reveal we would agree that this does the comp of the order does resolve an important issue separately from the coming to this conclusion and in the context of interlocutory appeal i do take as evidence every decision by the courts that has reviewed after a trial conviction whether or not a competency evaluation before or procedural violation  committed by the time the trial occurs such as confinement or cells compulsory medication so these are situations in which there is an immunity or a direct harm which are not addressed through waiting until a trial conviction and an appeal but i think it is good looking at the cases cited by the defense in their response to my motion to dismiss they look at dusty and other cases where what we're looking at is whether there was of the statute and where we are procedurally now the statute provides for the period of restoration itself thereby suggesting i would say to this court that it is statutorily acceptable for an incompetent person to be pending trial retain ging with the specific defendants who are talking about but also the field and so i foreclosing as mr prayer appears to be asking the court to do any future litigation or factual contestation of these  otherwise i'd like to move on to the substance so on the substance is appealing as misfires has correctly identified i believe that we will be here once the colonel makes a decision today or in the coming months and then we go to trial and then he comes back because it is not as i said before conclusive determination when we come back this court will look at the st of all the standard of review i think that when we're looking at how we approach these cases as is identified in the last against cook decision by this court there are just sort of a two step process st is whether the law that was applied in the competency proceeding was correct and nd whether that standard was applied to the facts and so the st part of the its intricacies such as whether experts were allowed there's also no rulings from the court limiting out certain cross examinations of certain testimony so therefore what's before this court is a question of not and which this court must review for clear was commit that of course in the clearer realm this court doesn't the discordant to be correct but its conclusion must be permissible in the light of the evidence and of course this court is also found that  a district court is allowed to credit the testimony of one doctor over another in this context as well as allowed to rely on information outside of neurological testing such as trial observations of the behavior of the defendant the legal standard for competency i think we all agree on that factual or standing the proceedings rational ability to understand the proceedings around him in an ability to consult with the attorney and reasonable that we are rational proceedings as well as a rational understanding of the facts of this case and the proceedings leaving for us with a single question as identified by the district court whether he had he has currently the ability to consult with his long that support this conclusion at least under and certainly under the clear air standard so there are two experts at this point who testified with each other i would say regarding a whole battery of tests conclusion beginning with as the experts agreed he should with the testing that was done but also supplemented by background information the general mental status of prayer and how he presented in person his performance during the conference and restoration groups the result of the cast m r another other tools of analysis to different competency interviews his performance before the presentation before the risk assessment panel to all the things that i mentioned he also reviewed a sizable amount of evidence that he had to weigh against dr west breeds eight hours with mr prey an hour and a half with his mother so with with proceed and whatever his weaknesses and there we did agree that there are weaknesses this report was correct to find that he has a current sufficient present billeted consult with his lawyer with a reasonable to be a rational understanding of the rational as well as of st impression but it is a case where the person everything has already been litigated on the competency and the fact that he's intellectually disabled and he has  did not base his decision on the science that is out there based on intellectual disability and the fact that  other scientists are dr travers who changed his mind about him being incompetent changed his mind because he was at a panel interview for dangerousness by the time that this case to that point  at the panel interview was the chief psychologist of the prison in the chief social worker of the prison who said that they found that he disclosed more facts than he had before dr did not take any notes did not specify why he changed his mind about why maybe there were other indications or other efforts that he would try to make to show that mr prayer was competent  in this case the record is replete with experts opinions about how he's not competent and dr chavis apply a non standardized information regarding phone calls with his mother that to change his mind and to prove the data points that the government is talking about to show that he's competent now and those are not the ones that those are not the points that should be relied upon it's that intellectual conative ability which mr herrera does not have thank you for your time in the case of