on august th of two thousand and sixteen mr russell as he had been many times before was suicidal confronted by the police mr wessel begged to be shot in the head and pulling a gun on of pulling a gun himself he was shot by the police luckily mr russell is still with us today but since that time mr russell's case has become a snarl to tangle of mental health concerns mr russell serious wessel had a personality disorder as opposed to a mental d illness can a personality disorder never be the basis s m there are no longer john lines between access one that a clinical disorders or access to their personality disorders and that some courts are moving away from drawing a line between which one of those things can be reflective of com cannot i think that well the the basic question remains regardless of how we characterize the disorder is does this particular disorder interfere with the ability to communicate with his counsel in a way that allows him to assist in his defense it's the real problem here that the expert to cultivate leave the district court did not believe in the for absolutely his reports of mental illness i think in my mind the real problem in this case is that the very last statement that was made by the district court prior to trial when mr cleary was again trying to raise the competency of his client was the district court said i have to rely on the experts and i think that the real problem in this case is that is not the truth the district court must not only rely on the expert reports in this case the district court had a host of other information of be able about mr wessels competency that was then ignored i think the district court shows the expert and crafted the rest of the evidence to be in accord with that expert's opinion and that's where the real problem i send is the district court's failure to take that step backwards from the point that the district court decided on competency for the last time what we refer to and brief as this inevitable drumbeat of and competency in this case and i just want to briefly touch on those factors before discussing our points in the three we have a serious mental health history that significantly predated the offense in this case we had mr russell who was hospitalized for sought emergent care for his mental health issues thirty times we have evidence that inside institutions and outside  because of these delusional beliefs that he held we had testimony by a friend of mr wessels who he stayed with who said he was religiously obsessed that he believed that god had told him that he would marry a very fine job on behalf of your client thank you for the facts i really do there is there is no question your client has very serious issues and a very long and troubled history  you know and with respect to his mental health the one person that seemed to understand this and to be as concerned as anybody about it in my view was the district court and one of the read the strong that i had to preparing for the case and you can persuade me otherwise was that judge pratt took an awful lot of care because she recognized the gravity of the mental illness that she that was in front of her with mr wessel she was evaluated for a very meaningful period of time twice in chicago and i think overall three or four times and so don't we have to call the finding that came out of that diligence clear error from mr wessel to to appeal to you know succeed here and her stand that we're up against a difficult standard in this case you know we are public defenders and whether or not we think that we may be able to win against the standard that we're up against we still variance you know i think that there are cases that become vehicles for this court to instruct the district courts of how to deal with cases and ways that are other than rehearsal but i do think that one i would acknowledge that judge perry was concerned with mr wessels competency and i think that's part of our point everyone was concerned right up to the moment of trial right up till sentencing in this case mr wessels competency that but that there was an avalanche of evidence in this case that pointed to mr wessels continuing incompetency at the time of trial and that judge pratt while she continued to investigate competency continued to let him be sent away for evaluation did not take what was i think an infinitely reasonable step in this case and that was to send mr russell away to be medicated we had three professionals in this case who said this could be schizo affective disorder and schizoaffective disorder comes with two components and one of those components is maybe out and depression that is that is capable of being medicated and also comes with psychiatric features and that is also capable of being medicated so we have three out of four medical professionals that said either said we can't rule it out or this is something that in order for us to determine whether or not this is a personality disorder or if this is this get so effective disorder that we must try medication in order to be able to make that judgment call and i think it is especially in a case where you have these continued hearings ainda competency we have to take that final step and say ok we've got an avalanche of evidence and we're not sure in which direction to turn we've got three medical professionals saying medication may we're and that that was the final step that had to be taken and that when instead the district court issued a final order and said i must rely on the experts in this case and stepped outside of all of the other evidence on competency that that's where the clear error in this case lies it's the fact of all three of the medical experts were psychologists who can not administer medication that can only be done by  make any difference in this case i think it makes a difference in our ultimate outcome because at right after the very st competency hearing trial counsel in this case tried and had doctor  r tried to have him visit with mr wessel and mr a doctor also said look this is something that could be treated and we should try a course of psychiatric medications here mr clear it continue to raise that concern that his client needed to be medicated right up until the time of trial so i don't think it changes the outcome but it's further evidence that there was one further step that the district court needed to take to ensure that we thought a competent defendant  at a very quick questions please is there anything on the record about how much he was able to participate with this counsel after he was moved from the court room for most of the generation of the trial there is nothing in the record about that case fitting keep and i believe i have entered my rebuttal time the i will give you we'll give you a final minute miss foreigner thank you very much ignore any evidence and in fact undertook extensive efforts to ensure that she understood all of the evidence relating to mr wessels competency before she entered her ruling in this case assess judge she judge pratt's entered a decision that was very extensive and very detailed and noted in that decision that she was incorporating all of the evidence that had been presented over the course of the three evidentiary hearings and the multiple evaluations that had been had been entered into the record so that that suggests and states that she did in fact able through that interview process to determine that he in fact was competent and capable of understanding what was going on and what he was facing in the trial process and dr shank had the benefit of dr calloway's evaluation and opinion and had the benefit of dr campbell's evaluation and opinion and over the course of the two hundred and forty five dollars day period that dr shank spent in a facility with mr wessel she spent time with him and she did observe him and she made observations of his behavior which informed her assessment of his condition and she also interviewed various present personnel who were interacting with him on a daily basis some of whom did you know he was willing to cooperate and interact with them so i think the record reflects both that the court was was looking at dr campbell's opinion and based its conclusion on dr cantu opinion but also that d shank had an extensive evidentiary basis including from direct observations of mr wessel for who her conclusion that he had a  at is not sit there and i mean i know it's not fair to look at this through the lens of hindsight but in fact at the end of the day he really wasn't able to participate in its trial with respect to the difference in the diagnoses between dr campbell and dr shank from the government's perspective the important fact is that they both concurred in finding that he was capable of understanding the nature and consequences of the proceedings against him and capable of assisting properly in his defense with respect to mr wessels behavior on the day of trial the standard is that the court has to make a determination as to whether the defendant is capable of assisting in his own defense and understanding the nature and consequences of the proceedings against him not whether he will ultimately choose to do so and dr shank specifically predicted that he would be in all likelihood given his history given her diagnosis that he wouldn't create difficulties at trial and that this what actually did happen was likely to happen and so his behavior was consistent with the evidence they reviewed and their understanding of his condition and you're on the site the one other point that i said i wanted to address with respect to the skit so schizophrenia diagnosis dr campbell specifically ruled out schizophrenia and campbell believe that that was a plausible explanation for mr wessels presentation the ability to assist properly in one's own defense and the jury waiver standard as the requirement that in the moment that you waive your right to a jury that it be knowing and voluntary and as that issue arose in this case the government's position is that it's a bit of a sideshow a bit of a diversion because the soundness of the court's refusal to accept the jury waiver is not at issue in this appeal and mr wessel is raising it to argue that it creates an inference that the judge didn't believe her  decision with respect to his competence but of course the judge did make a decision and it's an extensively reasoned decision and she cites a lot of evidence to support it but the reason that she found that it was not knowing and voluntary is that she attempted to engage in a dialogue with him as is the the requirement in the standard practice and he simply refused to engage in this is consistent with his pattern of disruptive gring that both dr campbell and dr shank diagnosed and predicted and he claimed to be in his twenty five dollars i believe even though he was in his early thirty's he claimed not to know whether he graduated from high school he would not answer with clarity with respect to whether he understood the the right that was at stake and so in light of those answers i think the court reasonably concluded that that it was not a knowing and voluntary decision that he was proposing regardless of whether he was competent to make it imprisonment your honor i have not been informed regarding his current car sorel status or how he's being treated there so but i would presume that he is continuing to be incarcerated based on the term of sentencing and the date of sentence  just want to make one quick statement about this characterization of mr wessels mental health through the lens of dr shanks opinion judge pratt said i have to rely on the experts and once judge pratt made that decision she chose conduct what makes it into the order was he quit because he was on drugs and i think that opposing counsel made the same mistake when characterizing his tragedy here as foolish and we expect him to make problems because dr schenck said he would and so we see it as wessel saw this case through the lens of there are people in chicago waiting to kill me i want the longest sentence possible so i can be safe from these people i want life and his mental instability and those persistent delusions medicated he will not currently talk to counsel and he last said he does not believe he has a pending appeal ok this foreigner thanks for your work on behalf of your client for the argument today will take the case under advisement and the court will stand in recess thank you