and then finds himself of in devon's committed and it's now been there for of words of i think sixty four months  expert but his own testimony was that mr mahoney's last physical assault of offense was in one thousand ninety seven and what we have is a situation to where they're trying to link and of dangerousness by looking at criminal history too but nine hundred ninety seven is the last physically assault of  importantly mr mahoney is diagnosed with bipolar disorder and this again is by the government's expert for the first time when she finds him to be a bipolar two again the first time he's been diagnosed as bipolar shit but she finds him to be a bipolar two and that is a less eeriest category than bipolar one it's something of you have it's explained then by their expert it j to one eighteen and one eighty eight but basically you don't have full blown manic episodes you have a kind of a hypomania and so might my point is and i think mr snyder does an excellent job of bringing this out in his cross examination you have a gentleman mr mahoney who sang he's a bipolar to let less serious they then start putting him into two when there are minor incidents they put him in a walk up for twenty three hours a day and a small cell and eventually turn him into a bipolar one and now they they they say well we've got to hold him because he's dangerous because he's acting at the institution you know what the dangerous when he doesn't have any physically assault of france's since ninety seven but as a jew appears pointed out he's going to whole history before and after dems on off on acceptable behavior he's got the since well he actually does under cross examination acknowledge some of that let me think your points are really want one by one so as the restraining orders the last restraining order that i see in this record is from two thousand and three all of the restraining orders either from two thousand or three earlier their product massachusetts there is not a single criminal offense in massachusetts for violation of any of those restraining order there is always knowledge of violation of a protective order in two thousand by the only time a protective order was violated and i'm going to acknowledge that a little bit of ignorance here in th time with your client and reviewed a lot of this dispute with him and was struck by the fact that your client dismissed the significance of this history of domestic violence and restraining orders seemed refused to acknowledge the significance of it refused to accept any responsibility for the history and that was troublesome to the expert because you suggested to him that he does not have an appreciation of how in the past of how dangerous he had been perceived to be how other people had reacted to him and rees concerns that he simply does not appreciate the consequences of some conduct and that in the psychiatry if you makes him it facility and again how both the idea that not a single call or effort was made to set up a plan that would put him in either a halfway house or some other place that might have been less problematic for his illness it seems to me if they're going to claim this is a hospital you know they they should be trying to make him well not make him worse so that they can come to court and say that he's in fact worse d and there was no plan to ever attempt to make this man well and and there are people who with mental illness are obviously made worse b case things are handled very nicely and mr mahoney in fact apologizes and conducts himself appropriately with with mr snyder and through the course of i think three months along the hearing  the as to the particular incident let's think of what happens at the ever court hearing beforehand of the prosecutor mischaracterized mr mahoney as a as a rapist and he had been we seem to have some relationship with now being conflicted out of the case and mr mahoney's family or mr mahoney it's a little unclear and hired a private lawyer the private lawyer felt he can work with mr mahoney so mr mahoney without counsel and so it creates a situation where he's been accused of something he didn't do any has no lawyer no lawyer and so it was a difficult situation with some with bipolar and also the other thing i'd point out is he also knew it back point that dr chanel's report included misinformation regarding him and that comes up with mr snyder when when mr mahoney mr snyder and mr mahoney are first before the court together and so my point is there were a lot of negative things going on that would have exacerbated th problem but the book when he actually had counsel when he had someone fighting on his behalf when they were able to show that these were in accuracies and fix them he was able to conduct at all that the that f m c evans or anyone in the federal system has contributed to make mr mahoney sicker that has never even been articulated until right now in this court and there's absolutely no evidence on the record of that whatsoever mr mahoney was with bipolar disorder and that's uncontested and was not raised in the breeze as an issue that he also was anti social personality disorder either one of those would be the basis for finding the first prong of section forty two forty six was the would be committee suffering from a mental disease or defect as a result of which he was a substantial risk of injury to another so there's been no question at any point that mr mahoney suffers from bipolar disorder so serious found he suffers from both bipolar disorder and antisocial personality and there's nothing in the record nothing from dr karim and that the federal system is contributing to making mr mahoney sick now judge harris supportively found on four separate bases that the government had proved its case that mr mahoney was dangerous she looked at his extensive criminal history and that roman history goes virtually back to the time he became an adult she looked at his courtroom behavior she looked at his scores on the three risk assessment instruments and she weighed the expert testimony and she found dr channel the government's expert far more credible than dr  arrest by virtue of the fact that he was in federal custody but there are ample examples of mr mahoney acting out in court both in new hampshire and in this district without  more fundamentally the fact that mr mahoney was unable to restrain himself when he was at that that is no excuse you are not supposed to engage in violent behavior regardless of whether you are in custody at evans or in the courtroom or on the street it is there and he bears some responsibility for that because he he made decisions not to go forward with competency proceedings is there some way in which should he change his is dangerous and has to remain committed yes and i think there's two answers depending on how you approach it in one sense the statute clearly does not provide for a competency hearing for someone who is simply towards his mental state and whether his mental state causes him to continue to be dangerous so it's not a competency evaluation but it is a look into his mental state at the time over the course of the previous year and indeed there has been so after and twenty that so no there is no look at whether he is competent because the statute is clear that competency only pertains to those under section forty two forty one there is however the minnesota where he was found not competent he then moved in the field in this court to have his underlying indictment dismissed on the basis of the fact that he was found incompetent and the court said simply the holding was simply there is no provision to dismiss the underlying indictment simply because there's no competency provision in section forty two forty six that's all this court said that's the whole thing there is no and indeed the statute is clear th statute lays out that if you're under forty to forty one you're entitled to certain things you're entitled to report from the facility director as to whether you've regained competence you're entitled to a different standard of evidence as to whether your company products of the other those who were under a mental disease or defect but the difference is does this mental disease or defect result and an inability to understand the nature and consequences of the proceedings and assist in your defense which is forty to forty one or does this mental disease or defect result in your release create if you were to be released there be substantial risk of dangerousness to people or property so perhaps that's a null set that there are mental diseases that do one or go to the other but it is a different inquiry and it does have a different standard of proof and interest in the standard of proof is more onerous for the government and forty two forty