please accord elizabeth barros federal defenders of san diego for mr thomas mr thomas is a severely mentally ill man who has been committed for approximately a year and a half and he was then medicated for over twenty two months at one time on a toxic dose of one of these medications despite this he continues to be incompetent he continues to suffer from delusions and lacks the insight into his mental illness necessary to assist in his defense mr thomas requests that this court reversed the april twenty eighth amendment order and hold that his commitment under section forty two forty one must be terminated the district court's april twenty eight thousand order continuing his commitment for an additional four months with ehr because the court the district court applied the wrong legal standard there was no basis for finding a substantial probability that mr thomas is likely to be restored within the four months how did the district i'm  curious why you argue that the district court didn't call the the correct legal standard are are you is that really what you're arguing or that he didn't the facts that he applied didn't meet the correct legal standard you substantial probability that we in such additional period of time the defendant will attain the capacity to permit the proceedings to go forward with this multiple references in the record when the district court is considering this that that he was aware of that standard so i'm trying to figure out why you are saying he applied the incorrect legal standard well first the government concedes that the court never identified the proper standard at the april twenty eight hundred hearing or in its written order  true that reading the order that the order you wrote your honor that i did initially draft it was submitted to the government the government reviewed the order and signed off on it before giving it to the district court but  the did you drop the order yes your honor i jotted and so did it and in fact i thought i saw in the proceedings that the judge directed the government to drop the order and you said i'd like to draft the order insulin you draft of the draft order that you gave to the court i did not add findings that the court had not made at the april do you think your include the correct legal standard in the draft order that you gave to the court the statute was referenced but i did not add finding and so now your fault but you said the statue was right was the language of the statute including the the order that was submitted to the court correctly and accurately reflected what the dish the district court's findings at the april twenty ninth you're not answering my question ok no i did not parrot the statute itself and you drafted it and now you're faulting the district court i just find that really remarkable and so i wanted to make sure and give you an opportunity to answer that because you drafted it you asked to draft the court allowed you to draft it and now you're standing here and you fault the district court for not including the proper legal standard in the order so if that's the i'm trying to make sure i understand your argument yes well just to be clear the reason that i asked to draft the order had to do with delays and mr thomas being transported because there had been a history of delays but i do want to point the court out to the court the district court statements at the april twenty thousand hearing because there was a dispute over what the proper legal standard was and the court said when i pointed out and i talked about the statute in reference forty two forty one  to the court responded when i said that there had not been any evidence that mr thomas was likely to be restored within the commitment period the court said specifically you can't have your cake and eat it too you can't say well he's not competent but oh by the way you're here by deprived of any further opportunity to try to restore him to competence and so that doesn't make any sense to me maybe it does to somebody else but it just doesn't to me so the court responded to the defense having pointed out and referenced the proper standard and rejected that standard so at the april twenty thousand hearing the district court made stated specifically that it believed that the statute calls for an initial period of four months and then there after a reasonable period of time and the made very clear that it believed as long as the court found that the additional commitment period was reasonable number of receiver your client has a number of issues it sounds like he suffered from mental illness for a considerable period and it's a very unfortunate case and looks like the district court  trying to do the best it can because it and make the make a determination and from what i can see all the right multiple references to the standard to the standard throughout the different here in including when the experts were testifying had to make a tough call like courts are often asked to do in these circumstances i understand that you might disagree but i'm trying to understand your best argument as to why the district court erred here well your honor i do think that the court applied the wrong legal standard not only as a court no would you show me some place where he was confused about what he had to decide if i read this where as a conscientious judge trying very hard to deal with a difficult situation and understanding that he had to find that there was a substantial likelihood of the person reading well i think i'm so i new show just show me where other than the order that you drafted the the judge was confused about what he had to decide well i think apart from the judge seeing that he believed because the facility had a pint that he was confident that they were basically  five the court said that it believes that it believes it's only other option was to release mr thomas and hope that the state does something about him and then at e r for sixty six the court said that sending him back to springfield well is necessary to protect society at large and in houthi this court found that a district court heirs to the extent that it's bases its decision to extend an individual's commitment on concerns about future dangerousness that those are distinct so there was a lot of testimony between the experts here on what was happening with your client i mean the doctor from springfield who had seen him twenty five times who  giving him her assessment of his mental health along with your expert about the mental health and the from what i recall reading the record the district court judge of took a lot of time listening there was a lot of hearing time devoted to this case and incorporating everything he heard from those experts and making that ultimate determination on whether or not there was a substantial likelihood that mental health could be restored within the time that was allowed but you're saying that those references is a nuff to say that he didn't follow the legal stand that's your best argument here your honor i can turn to my other arguments in this case because i do think that even if the court finds that the district court was aware of the standard and applied the correct legal standard that commitment period was both and reasonable and that it that it was the finding itself with clear air under these springfield what she a pined was that he that it was likely he could be restored she that what she proposed was for him to be returned to springfield and for his medication to be increased back up to the ten milligrams because when he had been returned to the local facility the local facility felt that he was over medicated and had reduced his medication but in law for this court noted that past experience is often the best prediction of future performance and as she noted the court actually asked her and she noted that the prior higher dosage didn't work the court said let me interrupt you and this is that you are three thirty just for a second so when he was getting a higher dose back then he was still fixed on this delusion cracked he had not shaking himself free of the delusion cracked and she responded that is correct so past experience here shows that a higher dose of medication was not likely to render him competent but  testified that he was functioning pretty well at a ten and i understand that's high but she did testify that he was functioning pretty well at a ten well i think even at that age he was functioning well in the sense  he was definitely definitely improved from his initial she thought that he would be could be restored she's an expert in the field why was it clearly erroneous for the district court to accept her finding and to go with that because even what she said is that he could be not that she thought he was she's a medical professional she's a psychologist and she says that he could be so why can't you how is it clearly erroneous and that's the standard that we have to apply here i'm not sure i understand but maybe you can think about the one you're sitting over here at the table and i'll give you one minute for your rebuttal thank you thank you very much sparrows good morning may it please the court nicole reese fox the united states i think the court has recognized what our position is which is that this is a difficult case and the district court over the course of three hearings carefully considered whether the defendant had reached a level of competence as applied to the specific facts of his case in this seems to be remedy day what do we do if we say  what happens if we say ok the district court was was fine in ordering him to be another whatever one hundred twenty days which was a long time  ago by now so it goes back now what happened well your honor the court ordered springfield to submit thirty day status report yeah i submitted the first one i moved to supplement the record with that  i think so if this court of this court affirms is that is that your question your honor what happens now yeah i said so at that point springfield will will either issue a certificate of competency agree stating that mr thomas has now met the company's competency standard that the district court articulated and if not if they certify that he is not recovered then by by operation of section forty two forty one we move into civil commitment proceedings testimony to support the decision that the district court made that he could be restored within the time that that was the primary evidence and the district court has had this case throughout its the life of the case and has  had all of the competency reports that your honour's have showing this steady improvement with medication let me ask you about the timeline because it seems like when he was arrested things happened in a what seemed to be a fairly  four week period and then he got sent to springfield then there was a competency determination and i think we're then at a tobar of two thousand and seventeen and he gets sent back to  san diego and then there's not a hearing until february eighteenth and it looks like he compensated in that period can you explain what happened  there was that delay and is there something to explain what happened there i your honor i'm not sure from october to january what was happening with paris may be able to address that since she was counsel below i was not but there were three hearings so the for at the first evidentiary hearing we had our expert fly in from springfield and the defense wanted to call an expert who wasn't available that date so it was sort of pushed out into from january to february based on scheduling additional experts additional testimony then in february was when dr tyner appeared by video to testify a second time and then the court sort of took it all took all the evidence under submission and issued the order i think the from january to march i think it's just the court schedule and trying to accommodate all of the various experts and who was the medical professionals that were tending to him while he was in san diego because it looks like you know there were things happening there where he started he was so he was in i believe he's in a sort of medical unit at the m c c and the psychiatry is there a disagreed i guess with the with springfield psychiatry his assessment of the of the risks and benefits of the medication which is why the dose was reduced so we don't know if his sort of slight d compensation is because of the medication because of all of the movement from springfield to san diego there's no right way to tell tyner who as your honor noted has a lot of familiarity with this defendant and appears to have developed a very good report with him she opined that with the extra time and the extra dose he could be trial and in a parole i guess of this year it was he was in about a year and a half seems like a lengthy period of time for someone who is charged with  particular i mean oh there was references to law for but i guess i just want to ask you is that the total time in custody that we account for for a reasonable period of time or do we account for the time that he's actually at the medical facility i just wanted to try to figure out a couple of the things and why was it reasonable to order his commanded commitment extended another one hundred  twenty days after the district recorder i had already extend his commitment so if you could do your best to answer some of those questions i would appreciate it i'd be happy to i too had some of those same questions and the research that i've done i think in terms of the  period of time and what we look to i think it's a difficult question about i think the defense as we look at the amount of time he's medicated in this court's decision in united states versus rivera guerrero the court looked at the commitment period which was two years two years at the federal medical center i think the second circuit in united states versus magath which is cited in both briefs they apply a totality of the circumstances test to determine whether the total time is unreasonable and i think that that's appropriate test to this question of reasonableness under the due process clause so i would turn the court's attention there were there were and i was nineteen months total confinement and the court found that that was reasonable under the circumstances i also want to sort of remind the court the reason that that the proceedings are are so involved here it's because the court was applying a specific competency standard for this case i think both experts agree that mr thomas had sort of the general markers of competency understood the proceedings against him he could communicate with his attorney the only question really in terms of competence with the extra that extra piece of understood being able to appreciate that he had a mental illness and being willing to consider a not guilty by reason of insanity plea so that sort of heightened standard is the only piece of competence that's left and the district court found that that was required in this case and even the defense expert acknowledged that in some cases insight into one's mental illness is not relevant to the case and a defendant can be competent even though he's not able to recognize that he has a mental illness so we're talking about a sort of small piece of the competency puzzle that's left and so the court's decision to allow springfield to x an additional one hundred twenty days to sort of to do that additional work was reasonable and i think the courts the options before the court  basically one hundred twenty days and then if he's still not competent the civil commitment proceeding star or just give up altogether and go straight to civil commitment proceedings either way he was going to go back to springfield even there for the forty five days under forty to forty way i read the statutory scheme i don't think that's an option forty two forty one direct but if the defendant is not competent at the end of subsection d it says the defendant is subject to the provisions of sections forty two forty six and forty two forty eight forty two forty six presumes that the defendant is at the facility for a dangerousness assessment and section forty two forty seven provides for a forty five day period for that assessment so i don't understand how by operation of the statutory scheme he could be released into the general public think that the options before the court he was going to suspect to springfield either way and it was either one hundred twenty days to try and then it and dangerousness assessment or just go straight to a dangerousness assessment and came to do that both at the same time i believe so i think it's a different process within the facility but if this court were to reverse at this point we would we would just advise springfield to move in move to that process immediately if you have you have moved to supplement the record with these progress reports is it really appropriate for us to look at those i get i think it's a difficult question i look to seeks an inter appeal it seems to me there might be more reasons for supplementing the record because the case is ongoing this is or there may be more reason to get it back to the district court of course that's for your honor to decide i thought i thought it would be helpful for the court to have it  whether the court considers that in its determination and so right now when is he supposed to what's his next important date so i believe the next out us or we got a status report in july that basically said things are the same as they were in june i believe if my calculations are right september september the hundred twenty days would be up so from now until mid september things are as they are the less this court changes course and then as i said if this court as the supreme court noted in jackson jackson there's substantial injustice in keeping an convicted person in custody to await trial where it is plainly evident that his mental condition will not permit trial within a reasonable period of time in this case dr tyner testified that she wouldn't expect his mental status to change significantly that was that you are sixty seven the difference that the dispute was between dr tyner had believed that he was competent on the higher dose and the district court found that he was not because he was still delusional and he didn't understand that he was mentally ill and therefore couldn't make rational decisions about what type of plea to enter in this case but the evidence below  clearly indicated that he wasn't his is his mental status that wasn't expected to change even if he were his medication was to be increased back to the ten milligrams that he was taking initially i think it was illogical an impossible to find that he would be restored within within four months at the time of his hearing he'd been medicated for over seventeen months he was on a hefty dose of medication at one point a toxic dose and he had all time to remain delusional delusional both about the fact case and denied having a thought disorder your honor with that i would submit thank you mr fox appreciate your arguments here today very helpful to the matter of the united states