recent and that would be the field motion to strike that and well now my question is you i'm saying what can find that this court cannot find mr connor's requested waiver confident and or voluntary but mike that question was slightly different my question was if his petition to withdraw the a feel is competently made in voluntarily may then why isn't that the end of our inquiry well first round of there hasn't yet been a determination mean you can't do it that's right your honor it's the court give you an advisory opinion about what it's going to do if you don't it would be an advisory opinion in the lines of this court providing information it wouldn't briefed and prepared for argument well and so just the timing of it actually to do with it i think the time is make it less voluntary because there's already been briefed or less and i mean less advisory if it's already been briefed it makes his decision was knowing mean what basis do you have to make that assumption information and sometimes as you ruling on a matter that's lived in before it has to decide whether piece of evidence is legally admissible or not so it makes a decision and certainly in this case the matter is lives before this thought he had a pretty good shot might have a good shot to have a very good shot at winning the underlying merits and he's fine i understand all that although what mr commers what the most recent filing for the most recent that's not the role of course courts don't have the power to give advice in advance and i think that this question was very much informed by special counsel's response up on that question  differently i don't look at the case as a matter of whether or not a person c cases that were decided and i think our standards have evolved since that time and i think it would shock the conscience of any court or state to carry out an execution that the only way they can determine whether or not the seventies was illegal and fire and and beaten into the concrete floor of his and handcuffed to a wheelchair because he couldn't even stand or walk and this only had moments of consciousness wheeled into the court room naked and slumped over and that's right well the judge couldn't tell whether or not he was she was conscious that's right around her and in fact the judge had to have a hearing the next day when camera wasn't there to determine whether or not he was conscious or not status examination not even sure what to call it he couldn't say for certain that mr connor was conscious he said well he was the last time i checked and mr commers answers during to the extent he gives answers during that fencing proceeding don't reflect any kind of competency was the lever and we know that the judge did have a bonafide doubt as to his competency because as you said the next day without apparently much notice to counsel because it happened the next day without the opportunity for counsel fifteen experts in and there's another and there's a second issue that makes mr commers convictions invalid in addition to his sins being unconstitutional and that is the prosecutorial misconduct that occurred during opening argument and but more so even during closing arguments in which the prosecutor argued that mr homer was a monster and filth and the reincarnation of the devil and the prosecutor we those disunited epithets into his closing to argue to the jury that they should apply th evidence of the non capital counts that was terribly inflammatory and prejudicial evidence apply that to capital count and convict mr homer because he was a monster because he behaved like a monster later that night or on the night of the murder he must have behaved like a monster at the time of the murder and that was so critical because the question the very close question is in at trial w like in like an animal like a non human under the conditions and she's in this record she has records from you know what his history is in the prisons in california and that and all of that and what he's going through now the torture he endures now explains why he doesn't want to proceed with this appeal and some way back in one thousand nine hundred seventy two was an indication that that was motivating his decision and then the letters that mr komer and some of the declarations filed in the district court all letters that were hearings for fact finding which is now been done and i'd like to save a little of my time for revivalist i can but but that's an important questions i'd like to answer what judge silver did was also unique th case to make a videotape of mr commers testimony and so as to the one aspect of the staff finding that josh silver arguably might have been in a better position to make court is has to make those findings regarding competency involuntary is independent of what judge sautner found think paid by the state the question i have not a fact not thought about that i was asked by judge go over to step into the case when this court prevented the back of the findings on the issue of voluntariness incompetent state and at that point in time district homer did not want to have anything to believe that first time that i wanted to judge myself whether he was competent or not as for my own personal belief entered dealing with it i spent probably two hours with him that day at that point here was a man that talked about every issue in the case knew what was going overcoming his death sentence and i thought based upon what i saw it was improper death sentence the way it was handled the procedures used that was my opinion and i told him that and i thought he had a chance of having some kind of  positive result on his appeal with this court and he says i understand i have the toll that i know that but i have still made up my mind that i want to wait my appeal and he knew the consequences of that waiver but i thought he had a very mer and i told him that when i first met with him now during the course of all of the proceedings that i'm going on now over two years we had a great deal of communication with robert palmer to keep him advised on a regular basis phone went over all the issues again with him actually went through the same colloquy that dr silver went with them at the evidence you're hearing use the same questions to say you know is this really your answer is this what you want to do and he was very clear that this was what he wanted to do and i even addressed the court's special question i said look the court could find here that you could have up you know you're going to convict be reversed you could have a new trial you could be  you still want to wait your appeal knowing that that may take jurisdiction away from the court in your process and your appeal would even be processed he says i don't i still want to weigh that however he says if the court decides they still  appeal that's fine with me i will cooperate in that but my wishes are still that if he discussed he did it was very bad but he said it that happens though i want new he does counsel i want my motion to dismiss heard the question before when did he change his mind of what happened and you know i really explore that question because i'll be honest with you through this process i cried quickly my own way as a lawyer which we deal with our clients to persuade this recall mark go on with your appeal you know you've got the court's attention you've got the president's attention let's follow this thing through but he has really got a very and i think in some ways i admire how his thought process was gone he said it started with his friends in the gun and he says that's what started opening his mind he says that inventory to start to see what i have done in my life he says i learned to appreciate basically how horrific my society imposes on me that's a lot different than a waiver well i'm trying to articulate the thought process is what i think he's going through no i say the waiver is different but you then you go on and ask the question now with that and with the factual knowledge about what all these things are you still want to weigh this and he will say yes and i just kind of started giving his thought process and i could probably take my full twenty minutes talking about how robert palmer thanks and somehow it's integral and important to understand how he so which is very small but to him that is just home it was almost like going to a neighbor's house to him but he went he related to all of us he talked with this talked about the things he talked about the lex on the things that it doesn't bother him in some ways he that's a hard question and i don't know what you addressed let me see if i could answer i'm asking here's the cup question i think even though i was kind of my first when i saw that the question presented by this court is just my own logic went through the mind i came out i don't think that he could be executed if you have an invalid or an illegal status then i look at the gilmore case in cases like that and said ok i'm probably wrong about that as far as the law goes not sure i agree with that reasoning i think it's wrong to basically even if somebody wants to go ahead and say i be involved in an illegal act that's what i would believe personally but the i thank you thank you to follow through in court putting aside his personal opinions and i believe that's exactly what this court will do is follow the law this case really boils down to two things the first is concerns jurisdiction the second concerns the overwhelming evidence of guilt in this case now because the record supports the supports the district court's finding that his decision to waive his appeals is voluntary that means as a matter of law clear supreme court law controlling on the score is this court has no court the judge was concerned decree a good record he even read that first exchange in the transcript then afterwards just to be sure just to be sure there was a they readily admit that he understands the proceedings and he's made a conscious choice and it seems those court of law are we should honor his is his free will i mean he wants to have control over this aspect of this life as a court of law it is it is appropriate particularly live an overwhelming evidence there's no question there in the sense in this case if this was a case of where there's a difference the question of guilt or innocence you know there be all sorts of other issues here but that's not this case that is not this case lawyer even though he wishes to do how can this court deny him that right it doesn't seem reasonable doesn't seem fair asking anybody to kill mr connor mr calmer is not asking anyone to kill him the mr homer is saying the people of arizona said this is the fit and appropriate punishment for what i've done told the defendant i want you to kill me and the defendant kills him is that a defense to murder other person that taco bell and the guy that you know he's a terrible person you know and that's saying he's a choir boy or anything like that right and i understand and i understand why i thought national chicago and st louis railway case from the united states supreme court the court gave a number of examples of situations in which relief is not granted a party is not ordered to do something but yet its rights are determined and those were examples like boundary disputes between state matrimonial determinations and those are my questions is a little bit different in and i don't know that there is any law out there you're deciding issue as to which there is no controversy between the person and the opponent which is the state and again you're out of there and goes to every contact that we can supreme court could soon review our decision and say now we're going to agree with the justice white position and again you're out of this case i think differs from all the previous cases in that it's what the court said there was we don't have to go out and find we don't have to go find out we don't have to find out whether this sentence is unconstitutional in this conviction because we don't know but in this court knows that it presents an entirely different question under the  komer understanding the understood in the printing proceedings below the ones the special counsel was appointed and working with him to prepare his testimony for the evidentiary hearing he understands exactly what he has to say to this court to be allowed to can not live as a human being he cannot survive in that place as a human being he cannot allow himself to feel to think to be a person and that is what makes th decision involuntary and he says to save us counsel if there was any way to make me right i tried but there isn't and so i got to get back to atlanta nothing so i can turn  is probably kind of a remarkable person because of that but he's never lost his competency or his right to make a choice and everything i see in his case on the record here is that he made a voluntary waiver case i think that there was a very unconstitutional death sentence imposed and very possibly an unfair trial the way it was structured the act that issue was vigorously argued by the state why were two lawyers of pointed to represent colmar on that issue when one was perfectly adequate to do from some other procedure she looked out and asked if i would do if i was quite frankly a little reluctant to do it at first until i looked into it more but i did do it yes mr todd could argue it but mr todd also i think would have been a little bit in a