dissenting opinion in that miller versus stewart position that ultimately prevailed when the supreme court baited to stay in that case that was imposed by the majority and i think that the clear we have a different case and miller the situation was there was a diagnosis of substance dependence and possibly anti social personality disorder here we have can whether the individual suffers from our mental disease defect or disorder substantially affect his ability to make a rational there is no case that he has overruled that and i don't read the dean  everything that was going on or is perfectly within the way you've been on medications and medications control is mental illness so how do you square assume for the purpose of this argument and i concede it below and i concede here we are not saying that mr downer is intellectually incapable of understanding it this way that's not an fact that busy is expert testimony about an individual mental illness and at the fact that in the decision making process i think more careful and stupid is like miller where there is a dispute about what experts say about what the individual state of mind the only the only mental health professional who is seen  if there is a reason to doubt it however whereas here the expert testimony so clearly overwhelmingly point of incompetence the jury cannot arbitrarily ignore the expert in favor of the that the report might be the best that you have and that may be someone to cross examination light i rode on the value that the report provides that it seems to me on the record that no one wanted to have him cross examined and while he was alive said now why is that due process problem because quite simply when you say there were two sides represented i think that it's on the incompetent but that's why we have experts and i have to accept that you know i'm not a psychiatrist and a doctor banker but one who has the training and the expertise which he does particularly in the field  preference says this is the line between his decision and his disorder i certainly cannot say from a lady perspective looking at mr dentist and hearing  in this particular matter i would suggest to the court that there are two somewhat in a related questions that are being pounded in this particular action first being that if a person is said to page sixteen fifty eight does that make him incompetent to waive from the proceeding when that person has a rational understanding of what is going to happen in those wise going to be executed the second leg of that isn't that are there two separate standards for competency one for someone who is fighting execution and one for someone who volunteers i would suggest to the court that there is simply one standard for competency echo's argument this action that is if a person is fighting execution he is per se competent but on the other hand that an individual is per se incompetent if he is not fighting execution because he is suicidal and therefore by their definition disagree with but if you look at a circumstance where an individual is entering a guilty plea the circumstances certainly are adversarial but they may not you know be confrontational i guess mr bush said it would happen but if an individual is required to accept any and sports testimony on anything and indeed in this particular case and indeed as the state district court cited in its order and thirdly before the end of this final order it was considering court finds dennis does not suffer from any disease or mental defect that prevents him from making a rational choice money spare is legal options including whether to proceed any further litigation it may save his life but really t by your honor in response back question i would i would point out first of all as i said mr edwards pointed out the discrepancy pointed out the what he believed to be the troublesome part i had asked on cross examination about the tailoring process that had gone on with respect to his special testimony so no it wasn't tailored i don't think anything is fundamentally changed in that report it's banisters characterization of his testimony as being the same as he rampersad in november of two thousand and three of reference being to his report and there being no difference between what he presented in federal court that there wasn't any need for a doctor to be there this is you know as i was trying to suggest previously an analogy would be a guilty plea it doesn't have to intolerable and who welcomes nant life experience is necessarily legally incompetent or the further legal proceedings which might extend that experience i would direct court's attention to that of the very last  record nine thirty seven he tells the police he should be entitled to some leniency because he did the victim of a favor by killing or teased as four or five times in a statement that he put her out of her misery now whether that's an actual reflection of his beliefs or not that something bad before concluding that this is a person and who is giving rational look at his cross examination of dr becker dr victor testifies that he does not believe that everyone who wants to give up their appeals to be executed is incompetent that this is very specifically directed toward this particular individual and as for the suicidal indicator you can post imprisonment let me fulfillment of the desire which i think is motivated by his depression and his desire to die in effect as he confessed to me that he didn't have the courage to carry through the desire so the state becomes its being able for suicide and i think this is a direct consequence of just moved or i don't think that could be any clearer so the fact that mr dan as can get up and say well i don't have any suicidal ideation now i think the part of