to focus on the competency in the shackling issues i did file a twenty eight day letter regarding your bar and that really has to do with kind of the core of the problem with the  she is that and the facts are undisputed by the government in their brief since they didn't address what happened during the trial proceedings is there's a in early october i think it's the eighteenth mr  who's the attorney for mr anderson raises some concerns he doesn't involve say that he's not competent he raises concerns just because his client is wasting suicide threats and his general behavior and his issues and he's been diagnosed when did that help me because there were two trials well there actually wasn't a first trial the chronology let me find my notes on the chronology it was set to go to trial in early october i believe  case is relevant his own in expert opinion that what mr anderson is suffering from is just normal procedure a trial stress the defendants go under and i think that's that's a fundamental problem with yes that might be a component of it that he's additionally stressed because he's about to face trial weeks a trial attorneys we experience judges you see it but this is a unique individual who has preexisting depression anxiety disorder who has been treated repeatedly by the psych the jails psych services i don't know to what degree because we have no record of it and there's a failure on the judge the recognize the need to make that inquiry further then the case gets the two days later mr anderson tries to kill himself in the jail is found unconscious the twenty second of october we have a status which judge where he reports what happened the twenty fourth they have a further status where all that is said is that on i feel like i'm going to lose it and yet all that happens is again this is where i'm sorry we're syria asked for the for the more time for the doctor heard to be evaluated and then the case gets continued to november and then the record in the course transfers just gives us a series of continuance is not even there's no reporters transcripts rip repaired and in california when the perp peel the court reporters prepare the record so everything gets transcribed that you know why dear doesn't automatically but it was requested in this case but the attorney doesn't have to specifically asked like we do in federal proceedings so the inference i have is that the continuance is that happened through november and december that are reported in the clerk's transcript are just  continuances where there is nothing new to be able to tell about mr anderson's before the behavior or functioning at that point then we end up in february february fourth i believe with judge or and there's a conference in chambers and this is it exits a record two ninety five there's no court there's no transcript which makes me think is purely a chambers proceeding and then the first day when mr anderson's back with judge or is on the fifth where he mediately  from arson hearing which is the night and then immediately goes to friday hearing it which is ultimately initially denied and then granted so that's the chronology that we have so our pursuit of the next day we have what they are so the government's position is that there's no clearly established supreme court precedent on any of the issues and that's clearly not accurate i think that paper from the supreme court nine hundred sixty six is a pretty clear indication that on this record the combination of mr anderson's behavior in court plus his suicide attempt are more than sufficient to raise a reasonable doubt a bonafide concern about his competency not as the judge belen on focused aren't just his ability to understand that he's in a criminal trial and he's charged with a specific kind of a crime but the exception component that is that he has the ability to assist in his own defense which which judge do you believe violated  mr anderson's rights for a competency hearing to think it was just belmont or judge or i think both of them did i think there was sufficient reason does is there can we assume the judge or knew about all of the bizarre case to to review the case and really review that so was the suicide in the record before judge bellman enshrined in the i believe is mentioned in the clerk's minutes even if the transcript had been prepared and i don't know when the transcripts get prepared for the court's purposes without any record indication on counsel's that would be familiar to counsel so i was as a factual matter i do not know whether judge or had transcripts and reviewed the whole thing he certainly had the court file  the minute orders which indicate that understand was not available for a court because of the suicide attempt well with the with those orders also reflected that he showed up in court one day with his with his jail garb on and then he said he wanted to be shackled in that he made several other outbursts were all those things in transcripts the judge or would have had before him the joke clothing i believe is in there because it's a refusal to dress out and  puta judge or the knowledge that happened before and even if he didn't he mediately goes from what is from the freddy hearing that he initially denies because obviously he's got some concern about this person's ability to function in court to the void dear the next day on the sixth where mike my concern is that is that two people have expressed a interest in and maybe even a need for a hearing a competency hearing the judge ju said he's going to have a common it's evaluation not hearing the but a psychiatric exam and his own lawyer right but i find then it becomes a black hole after that nobody and nobody seems to there's no record of whether such a hearing was held and so i'm troubled when it gets to judge or what obligation is he have for the record to establish the answers to that black hole because california court of appeals make some assumptions but on this record some of the some things are simply just speculative and some are just flatly not true accurate i think i think at minimum given the history of judge or has to ask that question before he starts the mars that hearing before he goes to the my question is this at some point here i understood after the suicide attempt there was a defense counsel who said that the that he was going to have us have a a professional exam and the accused for competency correct and then after that it doesn't show that that was ever character that was his interpretation of what happened that specific component of the findings are going to asians were rejected by the district court judge because she specifically rejected relying on that inquiry about the hearsay statement from the attorney general about what trial counsel said about what might have been in dr heard's report or lack of reported his notes and so i don't think that we can rely on that component i think there's still a problem the findings american nations of the just on the shackling component quickly there is clear law and the government's essentially saying there isn't and also that it's harmless and i just want to point out to all the harmless error because this is almost a structural defect when but the the key is did the jury see it and we've got the jury instruction that tells us the jury saw it independent of judge palin on statement back in october that the jury's going to know that you're shocked and that goes to the nature of the shocking chair that used in sacramento county and with the for no other questions i will say thank you shackled the court noted that and he wanted to keep them the court had suspicions that he was trying to influence what within a panel of prospective jurors and the court took off the  terrorist feet so he's still got the belly chain and he's got the ones on his arms what happens is after the prospective jury goes away they have to make it a note on the record that the defendant has made he want to free up his right what would happen in the future there's nothing saying that these were inherently visible rather during this receiving the definitive did something that made the jury see it but when the science can we just make a judicial inference and go through  he raised the claim one appeal if he wanted to make a record based on something outside the record he had the option of going to hades he didn't hear a soul appeal so he stuck with the record on appeal the record on appeal shows that the wrist thing that that was visible before he wasn't wearing a trial so he couldn't that whatever may have been visible whether you think it because he showed it or not he wasn't even wearing that the trial all he had a trial was a belly chain i mean a chair chain so there's nothing to indicate that was ever seen well court ordering visible shackles and a court order in shackles that aren't visible and the defendant choosing to tell the jury about them one can't claim i was forced to sit through a trial you argue  record the idea that the instruction telephone instruction telling her to disregard the means they saw them is incorrect yes they became aware them because he made them aware of the like sure as to the issue of confidence a lot has been made about why the defendant for example didn't participate in  there's no inference required because he said so he said he didn't want to participate because he doesn't know how he said he didn't cross examine some of the witnesses because he didn't know how that excerpt of record for one six he says f judge who was there didn't find any reason to cheat question competence again this is this is a cold appellate record that you've got the snippets that you know the parties focus on but you're not there you're not seeing the court interact with the with him which by the way someone who's talking about how he has consulted with his attorney who knows fully what's going on because he keeps talking about his priors and the one seventy six and the witnesses he wants to bring and he doesn't want this particular attorney given the test which is our rational understanding the proceedings and ability to consult with counsel there is no possible way that he was incompetent he understood the proceedings he was deathly afraid and bothered because under those proceedings conviction was almost certainly assured he was going to face life well actually without prison without parole in prison it's impossible to say there was any basis to conclude he didn't rush in understand he was able to consult with counsel he did so both before and  ability to speak with to address with to talk to counsel so the idea that if one considers in isolate some things they are consistent with the possibility he didn't understand is not the test it's certainly there's no supreme court so council on on the case the way the court of the state appellate court should have seen it should there have been a good faith doubt under hate i think that's where those words come from about the competency of the with the used to be my answer to that is no there is no good faith doubt but i also challenge the idea that pe did set the standard because the supreme court in drugs said it didn't it said pate does not hold that there is language in pe i know which is which is suggestive although the supreme court more than once has said while we recognize you know language response to apparently they have a situation where the judge waited until the end of trial made findings based on things that were not present even though there was a dark still very beginning and the judge making his own finding looking at  the whole record in and putting simply defend its credibility said no he's competent and they said oh that's constitutionally fines well so the idea that there's they they've clearly said i was no you just have to start and follow some here in procedure judges assessed the issue at the time in their statements that i've seen on the record i don't know if it's from both or just one of the judges of judge or and  the judge both said this but saying that they feel he can understand the proceedings well they are the i think they are extremely important given that those keep saying he doesn't understand and while the transcript doesn't allow us to decide precisely whether he's saying that sarcastically or truthfully this claim again was raised on appeal and if they want to argue that it must have been that he was quoting it which which doesn't appear from the context of they had to bring the they had to bring this in a way that they could you can't tell that from the public record the presumption is the judges know what they're doing and these judges never called for hearings so the presumption is everything everything they saw including consistent with their actual statements that he understands proceeding with that they they they saw what really is the inevitable conclusion that he understands what's going on he couldn't make the  your honors for the extra time i don't have a whole lot to say and reliance on his two thousand and eighteen press a brief is not meaningful to what his competency level or his functioning was in two thousand and seven two thousand and eight and certainly not meaningful in a way that we can just assume that he was functioning he's been in prison seen he's getting mental health care that he's in a structured environment he's probably on meds i don't know because this is an issue we've come up with just the whole notion of him trying to influence the jury by should being shot was absurd  a lot of the government's argument shows the same kind of misunderstanding about mental health issues i don't know if that reflects the dismissiveness or the fact of failure to have a hearing but certainly it's consistent with judge assumption that the client was just stressed i don't think that's fair given the record that we have it seems to me unless there are other questions that you understand you have a case involving  finding on the on the record one way or another about peel as to the right to a hearing i mean the only one that comes immediately mine and i don't have a citation is one that i dealt with before the anti terrorism act exists miles was on which this court resolved the ultimately decided to send it back for a retroactive competency hearing so there is this court has done that i don't ice assume but i don't have excite taishan i can do a twenty eight day letter afterwards if there's a post a situation where you've done that i think in this context because of the failure of the factual dispute that we probably don't even have to get there i think every man for the at the district level is required anyway i thank you the case just argued is submitted for decision the next case marcus versus mcdaniel and the attorney general has submitted on the briefs and it is so ordered because the next case for argument which is henry versus