coward my name is sarah again it and together with david boies and i represent the appellant thomas stevens sanders in this matter the district court permitted mr sanders a former marine with just needed brain damage who lived in a storage facility spare office on canned soup and strawberry jam convinced he was descended from aliens and tomato seeds would save the planet to go to trial without a competency hearing and in front of a jury selected to file ation of the precept that jurors may maintain religious scruples against the death penalty so long as they are able to uphold their both and follow the law these are the errors we propose to address today unless the court prefers otherwise and they require a reversal of his convictions and death sentence with the court's permission i propose to address competency st since it effects both convictions in the death sentence the district court was obligated to a spontaneous to hold a competency hearing in this matter based on counsel's representation that mr sanders was incompetent pretrial indications of his incompetence and lay an expert trial evidence  support under joke versus missouri the court should have accepted as true all possible evidence of incompetence and this evidence easily met paper says robinson's low threshold of sufficient doubt required for hearing about point in time w where have any expert opined that he was incompetent at the time of the proffer your honor yes no no expert had opined at that point but in the proffer of counsel told the court that they had conferred with their expert regarding this and he anticipated from a psychiatric stand at their counsel would not get any better but in fact would get worse how come they're working on a motion for a competency hearing counsel did not make a formal motion but counsel all that made a motion in invok versus united states case in their words before the court and so counsel gave the court all the information that it needed in order to proceed with the hearing at that time counsel told the court we have serious concerns about his competency to proceed in any regard at this point so effectively counsel did make this seem kind of proffer it would have made except for using the word hearing and experts to brain damage on the part of mr sanders and also to serious psychiatric illness the brain damage affected at a minimum his language concentration and attention and those three things certainly would have impacted his ability to communicate and understand the trial a capital proceeding is a very complicated and extended proceeding and the language concentration and attention of the defendant is necessity of the participation of the defendant and his attentiveness to a complex proceeding secondly the psychiatric illness of mr sanders the defense and government expert both agreed that he had serious psychiatric illness including hallucinations and delusions it's the agreement with does not mean on your face that you're incompetent it doesn't mean on your face that are incompetent but the question for a competency hearing is just serious doubt i'm sorry at that reason to doubt not even serious doubt reason so that that testimony comes out in its counsel that point even didn't say wh already raised the prospect of psychiatric testimony in its proper and the court had declined to order a hearing at that time so counsel may have believed it was futile but the important point is that the court has an independent obligation because it is to serve as a safety net and competency is such a fundamental right it's such a floor for all of the constitutional rights that are exercised by the defendant during a capital trial that the court's obligation is exercised independent of what counsel me do and the supreme court in both drop and in pete versus robinson has emphasized the court's obligations separate and apart from anything that counsel may do in fact in this clears it was your testimony about any of experts during the penalty phase that said he was incompetent to stand trial the experts did not say he was incompetent to stand trial during the penalty phase but that was not the referral question for the purposes of the penalty phase the penalty phase was often in the district judge erred by not ordering a competent like to make two answers to that question if i might the st is that i think that in the competency context it's actually counsel who has the best viewpoint on the in a very important way that the district court should act as a safety net in this conduit to act as a safety net in this context you just i'm just responding you said counsel in the best position to know and i was asking you but counsel did not move for a new trial at the close of either of the use of the trial for neutral based on competency no but counsel had already raised the issue to the court in the court did not apso counsel was also i don't think that exonerate think that did not have to look at what the district courts equal obligation is under section four thousand two hundred and forty one to return to judge south of the question about the best evidence i think it's mr sanders psychiatric illness and in particular his delusions which are reflected both pretrial and at the penalty phase and on which there is some agreement by all of the experts even though the court is supposed to take on its face the evidence that's presented in looking at questions of competency there is agreement by the government and defense experts that mr sanders was suffering from some delusions and those delusions ranged from feeling he was being listened to which might affect his willingness to communicate with counsel to feeling that he could see into the future which might affect his ability to understand whether in fact the death penalty would ultimately be imposed upon him to believing that he might be it's believing that he had some vision on what would save the earth and whether he could to munich eight with beings on other planes and we know from pretrial in which the judge knew at the time of the proffer that when he was interviewed by police he had trouble answering certain questions and not answering others for instance he was willing to say that he had committed the murders in this case but not willing to answer questions about whether he worked for a mattress company and he accused the police of cussing at him when there's no that's something i think a district judge has to evaluate the federal public defender is not asking for us to have a competency hearing maybe use of the records not terribly descriptive of this perhaps sanders who's was calm throughout the  i certainly would think judge drought would be going pretty far afield without any would question and with a fairly calm defendant maybe sitting at the table to take it upon himself to order a competency hearing when he's not that the supreme court we know from job versus missouri that the supreme court has said that the district courts a do just that in order hearing no matter how quote in artfully drawn counsel's request might be we also know that from  robinson that the supreme court has warned against relying on whether the defendant made outbursts during the trial as the signal for whether a competency hearing is required to reset in michel even when the government makes rambling statements in a logical statements a trial but that's not an abuse of discretion to not for the district court not to order a competency hearing so in the absence of the kind of evidence in this record that yourself which is talking about i understand how we could reach the opposite result here we can reach the opposite result here because we have we have evidence of and i put it all levels including a profit from council meeting bring the evidence of brain damage including evidence of psychiatric illness and including social history in other words lay testimony that supportive of the mental illness and the brain damage do you think that this case is worse than mitchell i think if so how i think the question here the issue here is that there is is whether there was a question a substantial sorry is whether there was a question about the incompetence that that should have raised the judge's inquiry at the time of the pro and all that would have required is for the judge to engage simply to engage and to ask some questions and potentially to hold a hearing it mean have derailed the trial and it mean him devolved all of these  additional proceedings in mitchell the court found that the colloquy is with the defendant demonstrated understanding of the proceedings the court here didn't make that effort to find out whether the defendant was understanding the proceedings and that's the essential distinction between this case and mitchell if i could turn out to the question of the excluded juror which essentially is the same problem the district court's failure to engage to find out whether the jurors views were actually in impairing that district court excluded her based on her expression of religious scruples in the questionnaire without asking her whether she could set aside those views in order to sit in this case and without doing  that the only record that we have is that she held some religious views but we don't know whether she would have been able to sit fairly in this case and that record establishes a violation of the witherspoon rule and require reversal and juror expressed here were beliefs she did not express that she could not serve she did not express that she would not apply the death penalty which she expressed was that she did not know and those are the kinds of questions  kinds of believes and those are the kinds of expressions that my dear is made for and that is the practice of courts in this circuit we are unable to find any cases in which a court on a similar record in th the request with this was that she be bound over for her boy dear along with the other jurors in the pool and in fact there were other jurors we've noted them it page twenty nine of our reply but i encourage the court to look  and seventy nine of the record these are both jurors who expressed religious scruples and who expressed in their questionnaires extreme views about the death penalty but who were permitted to attend avoid here and who by the time they were finished with the idea that the district court expressed finding that they should be able to serve one was excused on agreement of the parties despite the district courts so finding and the other was held over as part of the pool and eventually dismissed on a peremptory challenge by the prosecutor but there's no explanation for why this juror should have been treated any differently she said she did not know whether she could consider everything presented  that's correct your honor so i thought the question presented that she says she does not know is whether she can consider everything presented at the sentencing trial not whether what some of she would oppose question eighteen is if you were responsible for sentencing someone found guilty of a very serious crime and if you could impose any punishment would you and then it has a list and among the things on that list is consider everything presented for sentencing but the other issues the other items include automatically give the maximum automatically get the death penalty and so forth and her answer was don't know but that don't know is a perfect opening for inquiry in volunteer in the court could have inquired what did you mean by that and more importantly could have instructed her on the law and said law requires that you be able to consider everything presented that you set aside your religious beliefs and that you applied the law as i instruct you about it and what we know is that many jurors are able then set aside their religious beliefs as jerk twenty five injured thirty six promise to do and follow the court's instructions and in fact some religious teachings including romans thirteen wanted to instruct that you some questioning that follows which is invoked in the prosecutor's closing argument the question of the harm in this on this issue also relies on the court making a finding that the earlier invocations which are not recorded were in violation of his right to counsel and were unqualified and that's trickier to do because we don't have a recording of those statement some of the statements that mr sanders need after the initial supposedly qualified indications would have been admissible some of this statements which were made after the fall of fide in the case and would have been  what the previous officers told these interrogators and the main point is would they have had knowledge of these equivocal odd requests for counsel they came up in the previous and what he doesn't seem to like to talk about before was talking about other people and then his follow up question after the match was issue came up is he said the same thing i don't want talk about other people done that all sort of fit together in a interrogators to at least find out is he doing this again but there were a lot of irregularities in the way that law enforcement handled this your honor they supposedly had visited the location where they arrested mr you talk about what out immediately he was willing to talk thereafter let's just say that's the premise here if he does it in a more direct way as he did here but with this back story known to the interrogators now are you saying they could not proceed to find out if you're just whatsoever he said i want to talk to a lawyer it's not a situation where there was any ambiguity in the phrasing at all and they are not permitted at that point to to make the uncalled follow up about and there's no evidence of other unequivocal you say the evidence is not as good as it should be neutral for and with a different judge had to make the resolution on those others fit within  fit within the general sense of equivocal and location we think it's a fair inference your honor that mr sanders would not go from making equivocal invocations to suddenly making an unequivocal one so the fact that there's a  only recorded invocation on this record is an unequivocal indication we think creates a fair inference that the earlier indications were also an equivocal gift to make that him from the dragon rather than the district could make those inferences initialing the district the district judge judge does get to make that inference initially but we think it was clear error in light of the department of justice as policy which says that the best way to know when a defendant is invoking his rights and whether his a nd interview at the nd interview correct if that were they had the weekly discussion about the the power of rocks and that's correct you're on a new nd interrogation not the recorded one that's it that is good morning may please the court d j shankar from the united states your honors if i may add like to start with where the court just left off and that is would allow me to correct the record on one issue that judge southwick was raising that the record actually does show and i recognize that this undermines our argument in some respect but i just want to make the record clear it does show that the agents who interrogated mr sanders the rd time were not aware that he had previously perhaps invoked the right to counsel with respect to some question was an explicit i don't know if you were implying anything and we do have some evidence of what they were told yes that he had can fast and they did have some information about what he had said already you know they they did know that they knew him that he was interviewed and they knew what he had said but if i can point the court to our way seven hundred and thirty seven this is the suppression hearing and one of the agents was asked we learned that he was cooperative and that he that that he had confessed and so that's what they were told during the handoff and then the question to the agent was did you hear anything about whether he had invoked his right to an attorney either generally or as to any specific questions and the agent answered no ma'am we did not so approaching him about continuing to interrogate even if he'd had counsel that would not have happened your honor again and a defendant is permitted to answer questions without counsel present now if he doesn't vote the right to counsel questioning about that person's criminal activities but the questions can be limited and tailored as under the cases we cited in our brief and they clearly were here every time mr sanders asked for counsel he did it with respect to a specific subject matter and every time the agent then clarified just to be clear are you only talking about that specific area and mr sanders said yes mr sanders unequivocally showed eagerness to talk about the conduct at issue here and get a decision not to speak about without my reading to you i want to talk to a lawyer stop cussing me but i want to talk to a lawyer it doesn't seem to me that if there is a rule that some in vocation of the right counsel a desire in counseling that does not in itself have any qualification and absent some preceding information maybe that would put the interrogator on notice  and what the court said in korea is that even when the defendant's comments in that case which were i wish i had a lawyer here i want to see if i can push this to where i could get my lawyer and i want to see if you can push this sorry he basically said the same thing this court said that these comments when viewed in isolation do appear to constitute a clear invocation of the right to counsel however the agents were permitted to consider the context in which those invocations were raised and so this court makes clear that even if the exact words may seem on their face unambiguous that the court looks at the context in which the agency operating but they don't have a context that helps you do then i think they did your honor even in irrigators yes so even if we assume and we must assume because the record shows that they didn't know what happened in the previous two interrogations what they had here were st of all assigned advice waiver of the right to counsel an eagerness to talk about the crimes that mr sanders had committed an eagerness to lead the agents to the body and so clearly there was something that he was happy to talk about now if you listen to the transcript i'm almost visualize it again i'm getting in my interpretation so i don't want to say that that's the only interpretation you can almost visualize mr stander suddenly rising up and saying i want to talk to a lawyer and it seems so sudden and out of place that a has said that you clarify if the request is ambiguous and this court has said the request can be ambiguous let me and comment did he start off writing where through alan's body was located before or after that statement a well before that statement  even before that interview but before that statement during that interview the st forty eight minutes of this interrogation were mr sanders trying to lead agents to sue owens body so this question cam that statement occurred at the fifteen minutes and thirty five seconds more of the rd interrogation after he had already confessed to the crime and was trying to lead agency to the body and he suddenly jumped up and said i want to talk to a lawyer after i asked being asked about working for a mattress company and again importantly agent moss didn't proceed to ask him substantive questions about the crime he simply sought to clarify and he said about what and i don't i'm not aware of any case that says no more words can be spoken after showed that he possessed some of what you said you already had already tell them that's right but that i mean this is the i'm characterizing their argument of course they can correct me if i'm wrong on rebuttal but their argument in their briefs was that this was prejudicial because the agent i mean sorry the government  closing argument in the penalty phase has used his ability to lead agents to sue on his body to show that he possessed some level of executive functioning and that the government raises if you don't argue in your brief well he's already done that before o mental health experts talked about in closing arguments to the extent that there's a plausible argument that it was in that all of that came out before he had a clear indication it would been helpful to you to explain that  it is that the k that is definitely the case your honor it's abundantly clear from the transcript fifty minutes of discussion of course who owns body was before this statement this particular swing did he say i want to talk to a lawyer about the death penalty  if i could move on to d competency what we had here was an ex parte proffer raised on the morning of trial now we would submit that if mr sanders had truly been incompetent before this period defense counsel would have raised this much earlier the other point is that this is a this proffer raised on the st day of trial was preceded by eight days of jury selection full day proceedings in front of the court with mr sanders present and the record reflects that he was in fact present during those eight days of jury selection that provided the district with ample opportunity to observe mr sanders there is nothing in the record and my colleagues have made no argument that mr sanders was shown any signs of incompetence during those eight days of jury selection now the ex parte proffer in particular provides no specifics no examples if there had been anything to point to mr sanders is refusing to talk to us mr sanders is holed up in his cell and in a corner and not coming out anything like that you would presume that would have been in the proffer there was nothing now this court has set forth three factors for district courts to look at when determining whether to sue a spontaneous order a competency hearing and none of those factors were satisfied here if argument by defense counsel on the morning of trial is sufficient to require a district court told the hearing and the statute would require that hearings are mandatory upon defense counsel motion it simply doesn't do that it doesn't leave it up to the district court and none of the factors are satisfied here with some general in as far as i can show some general explanation of his mental health presented to the district court in the either in pretrial motions or otherwise some sense of it  any of that being in front of the district judge me for how my colleagues said otherwise i believe in her opening arguments so i open to being corrected if i'm wrong when she resumes the podium but i'm not aware of any of that being before the district the only possibility i can think of and i was thinking of it as i was sitting there is that perhaps the expert reports were filed with the district court in advance of trial perhaps for dobber hearing that may be what my colleague is thinking of but i'm not sure at the very least competency was never raised with the district court until the morning and the last thing i want to touch on is is the challenge for cause of the juror and i will acknowledge error at this point and apologize to the court we in our brief failed to recognize that gravy mississippi which my colleague s colleagues cited in their reply brief governs here we had argued that harmless error would apply here and i apologize gravey mississippi does say that in the capital context witherspoon or when there is not subject to a harmless  review that said we maintain that there was no error here the jurors potential jurors statements here at the very least showed a substantial impairment in the ability to apply the instructions of the district court the case law is clear that the potential juror need not indicate that he or she would never be able to impose that sentence nor does the case law require that the potential jurors statements be unambiguous and finally the case law does not require or dear and so what we have here are quite strong statements by this potential juror they were not just statements about to answer the court's question about the cases that governs those statements and the unequivocal nature of the invocation i refer the court to page nineteen of our reply brief which does unite d states versus i v it's a th circuit case i think that the government's characterization of those statements and the process by which it was given supports our competency claim  the way that mr sanders behaved during the taking of the statement is indicative of the mental health issues with which he struggled the pretrial the other pretrial indications that the district court had were record that it had a short conference with the defense and there was a matter on which he was going to allow them to make a private proffer on the record at a minimum we think that remained is required to it further address what the district court knew and didn't know and why it declined to order a competency hearing on this very serious record disappointment the supreme court has indicated that no one factor should be dispositive in the competency inquiry and here we think that sufficient questions were raised about mr sanders competency that the court cannot be confident he was competent at his death penalty trial as like to address a few issues about feeling sure of who was ex though i think it's important for the court to recognize that we're dealing here with a person with a th grade education someone who is a working person who's questionnaire may not have used the most sophisticated language but this is the kind of person i think that courts and certainly the federal government in the jury statute which is very permissive about jury service wants as a part of our fair cross section requirement for service the government says that there is no requirement for why dear but this court has never ruled on the issue whether  volunteers should be required in a capital case and we have made the argument in our briefings certainly that the court should not exclude a juror who has questionnaire presents in this fashion without forty or this case and there's been no case cited no capital case certainly in this jurisdiction where the court has not conducted void here and even in those cases where there has been a questionnaire that has been more serious  scrupled than the one in this case like bernard the court conducted for dear and it was on the basis of one tear that this court affirmed so in void dear the jurors did sit just say as in this case i do not want to do something it said i cannot do something and the district court still granted void tear of that juror and it was on the basis of the court's view of that juror and perspective on her credibility demeanor that this court affirms the exclusion of that juror here the juror did not get the opportunity to be instructed on the law to tilt to learn what the standards are that she  should set aside her views about religion and be able to follow the instructions of the court and that if she did that she might be permitted to serve and we don't know what her answers would have been but we have three different answers that say man is not and the supreme court has been clear that you may hold those views and still serve and since she did not help pick the claim court said exactly that it has it has said that you may hold religious scruples about the death ripples are one thing but to say i cannot in good conscience impose the death penalty they've never said that she did not say that on this record your honor i do not judge that's god's job right but she did not say i cannot judge four for the questionnaire which the district judge declined to give and it asked you are required to accept the law as the judge explains it to you even if you do not like the law or disagree with it in determining both the guilt or innocence of the defendant and the appropriate sentence will you have difficulty following as a rule of law if she had answered that she would have difficulty that would be a different question but in question sixty two when she was asked if she would have any trouble being fair in this case she answered no and there were several other questions in the questionnaire that indicated her ability to be fair which we've cited in her brief and on that record we believe it was wrong to exclude her without giving her the opportunity to answer questions th