judge about what happened at that time counselors there's two there's two questions here on the on the you question the hearing one is the one is the question as to whether they should have held a hearing and the other is the question is whether he was competent had a hearing not that he was incompetent in march the argument is that he was incompetent in july and he was incompetent not because of some chronic relatively stable condition of incompetency but rather because of increasing anxiety and increasing drug place so the only evidence we have in front of us in terms of whether or not there was enough evidence in front of judge arnold in one nine hundred eighty one at the time of trial or at the time of certain saying that you should sue a sponsor they have conducted a hearing that i honestly can't say i you know i don't have any empirical evidence one way or another whether that's unusual or not for a defendant to do that i don't believe it's unusual for a defendant to ask for god's wisdom in that kind of a they were filed late you know that actually are spoke to the clerk and the order i wasn't clear on the order that they're supposed to be filed on that day i thought it was like finding briefs that now it would have you have to read our rules i apologize your honor if the court let me let me ask you this and this was i think preceded the time of your involvement in the case i mean you have a lot of the events took place probably when you're in grade hands of twenty one years which with credit for time served would have worked out to considerably less than that can you give me some insight as to why the state simultaneously had such what i view as such divergent views of the very same case i can only speak from my own personal experience default and all of these things but i find myself here after all this time and what is really before the court and the decision the court has to make i think is quite simple and i'm referring of course to the over and over again and i perhaps most recently by voice versions around four o four s third at eleven sixty five was a decision from this court last year that if the information before the judge at the time of trial and sentencing did not raise a reasonable doubt as a confidence the defendant can still prevail any post conviction hearing by proving by a preponderance of the evidence that he or she was actually in competition at the fifteen seconds or less often my best argument is that someone wrote a book on you know where i'm afraid i didn't read it and you know being a lawyer it's hard to do anything in fifteen seconds but are very simply this this state court never decided the paid issue number one and number two the state of arizona waived the argument that that issue was wrong to state never argued that the page issue should not be that show no organic problems and at that point and i think it's fair by the twenty first judge groups i don't need a full blown competency hearing i find that this man is competent stand trial well at that point i think th in the sense that you should be aware of that but as of february twenty one i don't think there's any obligation on the part of judge donald ok well i want to argue with you about that because i don't think it matters the one thing i would point out the judge drew apparently overlook only speculate but all that it did anybody could really see is mr mcmurtry sitting at the table writing whispering it's one point according to the detective when his father was testifying he all and he looks like he's paying attention but there's no way for anyone to know though so then what is dr arnold supposed to do if he can't see anything that should alert him to act that the that the defendant may not be eating his counsel if the council votes because and there's nothing else no other objective evidence than what this judge arnold supposed to do and why are we and what why is there a constitutional violation here if there's nothing to alert the jot oh no your honor it don't give me their w of all be aware of what the other doctors had said it and they were not in agreement in confidence you supposed to pay attention to the fact and this is extremely important that the doctors testified to the fact that mr mcmurtry was receiving all sorts of drugs mind testified that he was receiving enough stories in what he'd seen him earlier to knock out an ordinary person he was receiving five times but it was evident that he wasn't knocked out so it's what to do to an ordinary person of course is of no account here because he's got the defendant and his partner whom he can see in writing notes to his counsel he can see him being responsive to witnesses well we don't know that well no you just told us that that he was there he was responsive to witness this specifically defense lawyer again repeated that he was giving all of these these drugs thorazine advantage all human cetera that he is unstable mental health further decline that he was on the verge of a nervous breakdown that he was in a chemical wasn't a reasonable attorney your honor and i mean first of all we have to keep in mind mr polis had only been practicing for five years and misused the docket two months and was that was appointed counsel i was a higher than he was he was retained ok but i don't sleepy the record show that was going on during the course of the trial you know but but that was in the pre sentence report that the judge received as it was for example during the mitigation hearing  the judge learned that mr mcmurtry had been hospitalized for about ten days three months before the trial because of a suicide attempt the judge learned that he was engaging in threatening behavior the judge learned that he was smashing his head into a window bashed his head into a door immediately after the trial that the jail put him on a suicide watch they don't say anything or do they psychiatric social worker ms ford don't say anything about being aware of the drugs the dosages of the drugs and the effects that they could have on him but you know it's one thing to say well he has mood swings it's another thing to say here's records that he so i asked his wrist here's records that he slammed his head into it into objects and those things happened after judge truth levon determination absolutely this this all happened judge truth made his decision terminations mid february the suicide attempt happened in late march now i'm sorry late the testimony was really being offered to the jury by dr marilyn girland and by the others the trial has money was being offered to support the insanity the fans right john was hearing testimony that showed that his mental state medications were beat were being changed and it one point dr perrin the jail doctor expressed concern that mr mcmurtry was receiving such high dosages of these various drugs mr mcmurtry became ill causing the judge to call the jail doctor science jago testified that stress would provoke episodes in which mr mcmurtry would be an able to interpret what went on around him in a logical coherent fashion  and that it would his emotions would impair gravely on his ability to function doctor girl in testified about the tremendous amounts of thorazine that he was on that he was receiving five times sentencing yeah if evidence comes out after the trial but before the sun saying that raises a reasonable doubt as to whether the defendant was competent during the trial or is presently presently in certainly the judge has an obligation at that point to take action if we agree with the district judge that judge arnold at some point maybe as late as the day of sentencing percipient witness because his last serious interview for this purpose was in march before the long before the trial began what do we do that is to say is the fact of that a hearing didn't well what happens and this is in judge nielsen toward is that you have to have to go back and look at the evidence that's available and decide whether it would would ca no question they have the primary responsibility to raise the issue and what differences do we take and the fact that they never once complained to the judge about this well i think that they were inexperienced and that they didn't know what they were doing we have because i counsel ought to do with him within iraq ranks as a broad range of things and they have they have raised the question of of of how he was behaving in court but their concern was how the jury proceeding not once did they ever say you know something your honor we can't get a thing out of our client over here and he is so doped up that we haven't got a clue what's going on and we ask him questions he doesn't respond we don't we don't get any we don't get any of that can't did not do anything the state destroyed the records and if the court had taken action then it might have been a different situation but instead we had to wait seven more years clearly even if the defense lawyers did some things well i think they did a horrible job as far as their client's competence went and i would submit that this is a very simple request we're not asking for for the mood in the stars all we're and yes he was very aggressive towards them he was very harsh but to their credit the defense lawyers stuck to their guns literally and what did he say when they when he denied well he did well when the when the issue first came before it off them what did he say of well i mean the first time it came up as far as the motion for new trial when is the court the first time in judge arnold made two mistakes there and the two mistakes the curies to the rest of the history of the case and one is the court pointed out is he said well i'm not a doctor so i don't know what this means well he went through that they were although he instruction was internally contradictory because it one point it started that if the jury finds mr mcmur a reasonable doubt it would have quit so it shifted the burden and the instruction gave both shot one point put the burden on the state of the other point put the burden on the defen incompetent during trial that the medications that were given to him this reporter is one of his offenses that trial is insanity and his witnesses came in and testified that his medications if a person actually has some kind of mental illness it makes sense to give them medication for the other side assume that we find that the judge had enough evidence in front of him by the time he comes up to the sentencing that he should have to respond to a order to confidence here and still further  different standard for strickland of course number one you have to have ineffective assistance and number two there has to be prejudice what is prejudiced mean in this context doesn't mean merely that he's prejudiced because it wasn't brought to the judge's attention or does it mean something more than what's happening and again your honor this is a judge that there's been a tough nancy determination prior to trial but that was way before it was four months before well four months a long time you know also that the testimony about the drug as it relate of these rage rages in sport which would have just discredit their their whole case and therefore they may be happy to have him as the data there but that's it still doesn't quite answer at least for me the question as to whether he was just what  over anxious and they were then able to understand what's going on and there was testimony at the hearing that it's someone is overly anxious and clearly mr mcmurtrie is becoming more anxious as the trial approached and during trial that actually helps a person