at that at the point that he was released from the oregon state hospital into jail in january twelfth one thousand nine hundred five the doctor the treating doctor then made a finding that at this time she was able to aid was never a judicial finding yes i stand corrected but the doctor was basing that on the treatment while he was in that in that state hospital for three weeks and only qualifying for statements two at that time so many months passed between that time and when he presented delusional so we know he wasn't competent in those weeks but the as i was going to say the doctor's mental illness the report to the oregon state hospital gives no that's right right but he couldn't say i am profoundly mentally ill because he kept denying it even while he was giving his history of fifteen years of psychiatric knowing that he had to psychotic episode he doesn't ask the judge to postpone the trial he doesn't ask him to get reevaluated he doesn't say he can be held for three years and then released but they hold him until he opinions but we don't have a judicial determination that he was fit to proceed so in that way it was just like the the judge ben you're incompetent but let's go ahead and proceed anyway the only difference was a span of several months went by between the finding of incompetence and a procession to trial and the attorney did nothing to stop that procession only serve i think used his attorney told and forty to ninety months and he's already done that time and that was the prejudice but that he i believe part of the prejudice that he suffered was that had he been competent instead interesting in this case is that there wasn't it's not one of the cases that we look at it from the supreme court where the client is claiming oh i was incompetent back then look at the record even though the judge found me competent look at all these other things that were going on here we again i'd like to address the court's concerns about the remedy and the prejudice but i'd like to get back to that after i make a couple of points that i think are are important to the disposition of the issues here first of at the beginning of trial before the court conducted the waiver of jury  that's factual finding is not an unreasonable determination of the facts based on this record it was a retroactive finding of competency which can be done under oath will be woodford based on the record claim against the trial for one of the other points of counsel makes in a reply brief is that the court under state law was required to hold a second hearing that's absolutely not what the statute s does the p s harvey is required to hold regular hearings to determine number one if he's continues to be mentally ill and number two whether he's a danger to the community both of those hearing at any time we have and one of those problems does not matter either his mental illness is cured or he's no longer a danger as the evidence at the hearing supports then the attorney in the case would have brought it up the court would have been compelled to hold a competency hearing counsel it was incumbent upon counsel to bring that up at that time knowing all of the history that i've already describe look on this record and they that there can be a retroactive finding of competency because there were no i'm saying yes that is true but it's not an issue of whether he was in fact competent as counsel is saying is that should he have brought it up and if so would he have been found incompetent we don't know what would have happened because he didn't bring it up we know that he had the relationship between the medication was started and when i saw him so i don't think that i saw him in his symptomatic state in its greatest level of symptoms yet again there were times with me when he actually conversed fairly rationally there were other times however when he wasn't rational and our reports indicate have do know about the drugs were the list that i explained earlier those were new drugs we don't know what how he was functioning because there was never a hearing to determine whether he was competent he could have been a robot in answering yes to every saying look we don't know ok let's hope you have both his counsel working with what you're describing is one way that explored least iconic person who was unable to anus just would have presented himself we know that's not the only way and we know that the case is they that's the whole reason for judicial determination because we can't tell  from just demeanor or from just acting out we know that all crazy people don't just scream and rant we know that they are performing different levels of functioning in fact what opposing counsel is describing was going up and down wavering