good morning may please the court my name is dale michael berg and i are with the office of the federal public defender for the district of arizona and we represent mr rossi and these proceedings  to reserve the balance of my time for rebuttal and the integrity of the death penalty in this case is in question for at least three reasons first the trial judge and defense counsel failed to recognize that the medication mr rossi was receiving during trial may have rendered him incompetent second the investigation for the sentencing hearing w inadequate counsel failed to discover that mr rossi suffers organic brain damage as a result of prolonged use of cocaine and other stimulants and third mr ross he was sentenced to death by a man or further evidentiary development together the cumulative effect of these errors demand that relief should be granted i first like to discuss the issue relating to judge mar honor i i i think that's sort of unfair the district court made a ruling and for six years we have been proceeding in this matter under the judge who sentenced mr rossi and two other men in arizona to death there are some additional facts in this case that should give this sport pause first there is a temporal connection between the time that the judge sentenced mr rossi and the judge was first arrested a period of one month the next the judge slept through part of the hearing also mr rossi was a drug addict and offered he is addiction this mitigation judge marquardt was fighting his addiction and because of his own dependency he did not give adequate weight to the expert testimony concerning the effects of the addiction up for possession of marijuana it turns out that the quote green leafy substance did not testing of the green leafy substance did not indicate that it was marijuana so it was inappropriate for not a procedural seat guard to make the highest judge constitutionally acceptable the united states supreme court said that in the words versus village of monrovia the defendant is entitled to a neutral in vitro detached judge in the first instance and the appellate procedure is not deemed acceptable what because the state eventually provide i'm sorry judge hawkins could you repeat yeah don't you think w don't know your honor there's there's nothing in the record in addition mr ross he should have had the opportunity to further develop the the facts relating to denison and he attempted to do that in the post conviction proceedings in state court but to answer your question there's there's nothing in the record and i don't know that that we could as the second issue i would like to talk about is ineffective assistance of counsel at sentencing hounshell at the second three sentencing did not conduct an adequate investigation to prepare for that hearing there is no excuse for his failure he did not interview family members and he did not discover that mr rossi suffered organic brain damage and there were tantalizing indicators that were available to counsel that mr rossi had organic brain damage he had a long history of drug abuse especially stimulants and cocaine  he acted out during the trial in fact the jail psychiatrist at one point said that mr rossi may need a neurological assessment and that's referenced on page twenty two of fifteen year addiction to cocaine and psychosis at the time of the crime he had no ability to plan deliberate or reason and that's noted in  proceedings mr rossi claimed that counsel failed to develop mitigating evidence concerning his mental problems generally and at the time of the crime rossi requested the appointment of valid mr rossi attempted to do so in the state court as as well as in the federal court the district court did not properly consider rossi sentencing claim it was offered to support the prejudice pran of strickland in this case there is a reasonable probability to undermine the confidence in the outcome and a perfect example  to demonstrate that is the point that the arizona supreme court made in raw c three in upholding the finding against leniency the court noted rossi produce evidence focusing on his drug addiction not on any alleged mental illness or intoxication so the arizona supreme court was looking for more and the following year in the decision the arizona supreme court held that that trial counsel failed to or the trial court i'm sorry failed to find that the  already in the record from dr power existence of mental impairments and the failure to find them are grounds for finding prejudice or remained in this matter for an evidentiary hearing the final issue that i would like to address is mr ross these competency to stand trial under odal and miles a petitioner can waive his right to a competency hearing there is evidence in the record that rossi was not co and this should have prompted the trial judge to hold a hearing he was on high doses of antidepressants and so from his initial incarceration until the eve of trial there was an abrupt cessation of all medications and mr rossi had a reaction to that there was a suicide attempt and there were a number of phone and miles from the two decisions from this court a petitioner cannot waived his right to a competency hearing so we believe that the district court was to a competency hearing is a personal right that mr rossi must must wait and again under under this court's decision and this plane cannot be waived with as a result of going taking those medications there were hearings concerning what kind of medications he was receiving however the judge did say and i think it's on page eleven or twenty two of the with with work choices during his testimony so there there there's enough in the record for the trial judge to be concerned about whether mr rossi was was competent what what he should have done was was held a hearing and determine what allow the medical personnel that to determine what the proper  my name is ken for tammy i'm an assistant attorney general from the state of arizona representing respondents in this matter i would like to start out by pointing out what i think is a significant misrepresentation of the facts in in the repl epilepsy or of any other neurological condition with the exception of possible migraine headaches i can find no evidence of a medical condition which would have allowed him to perform activities without subsequent recollection or which would interfere with his ability to distinguish right from wrong this is significant because that rossi's council has portrayed this as a case of a man with organic brain damaged who is not provided mental health experts to help him develop in fact rossi has an i q of one hundred nineteen which places them in the upper ten percent tile of the adult population he went to college on an academic scholarship and worked at responsible jobs he would say he was examined by at least seven mental expert of his competency at the time of trial is his own trial testimony mr rossi testified and i think if you'll read his his testimony that testimony in compass was eighty four pages of transcripts and i think that provides a very clear indication that he was not brain damaged or otherwise incompetent he certainly responded appropriately and then was sparring with the prosecutor i think it's clear if you'll read that i think that's the best indication additionally prior to prior to trial there there was a preliminary prescreening for a rule eleven evaluation by dr leonard garcia remote possibility that he is now or has been at any time since his incarceration affected by any defect or disease of the mind which might negatively influence his ability to comprehend the nature of the proceedings against him or to assist counsel in the preparation of hi dr o'connor had indicated that in the past rossi had stopped taking medication and that it didn't really have that much effect on him o'connor says in our opinion he doesn't have a psychiatric disorder our dealings with mr rossi in the past have been that he's been very addicted to very strong medications for a very long time and that he has in the past prefabricated prefabricated some problems some symptoms in an effort to get the medication dr connor agreed that the medicine agreed to give him given the medication so i think it shows that the trial court took it seriously and did consider it and again i think if you look look to ross he's testimony i think that's the best indication of his competency in this case head other than it's it's a determination of whether someone is having mental difficulties i'm not sure how that could be anything other than a factual determination competency ends to me definitions and been posited in the very and judge being judge hawkins make a good point that there is nothing in the record that supports this allegation and it's important to keep in mind that this was the third sentencing and defense thirty two of the eighty seven pages he speaks on page thirty one on page thirty two on page forty on page forty one and sometimes when he's speaking he's obviously referring to testimony from prior pages i speak some picks forty three page forty four page forty six page fifty five page sixty sixty six sixty seven seventy one seventy eight seventy nine eighty eighty eight ninety six ninety seven one hundred one it goes on i could read all of the cites and it's if you look at that he's responding appropriately every time there's an objection he responds as soon as a witness finishes he ask the other side if they if they if they're certainly i think you would expect that someone would at least ask the question our state judge judge east seems like there would be some indication and even even if we're not requiring him to make the objection at that point that the state court did not find this claim preclude it considered this affidavit at the post conviction relief proceeding and nonetheless said there's no there's nothing in the record to substantiate the claims against marquardt so even without an objection at the time and i would did the impairment have on him well and even even with i'm not sure that there's evidence that he was impaired and there's evidence that he took marijuana during this period of time whether he was actually impaired during any of the proceedings against them i don't think has been established because there is there is nothing that we can point to nothing that has been pointed out that shows he didn't understand the question he his speech was was lurd so i i guess i would disagree that there's evidence it isn't really that much different than anything that would affect a judge whether it's going through a divorce whether it's having a child with drug problems or just a child who's struggling or any kind of illness in the family if we're going to open it up to that kind of  y i think if it would be it would be extremely problematic and i think you do have to focus on is there any indeed during the during the proceedings in court that show th about having problems with children at home and that sort of thing are the same very things that would cause with an ordinary charge to recuse himself or herself from perry the case does that have any impact on our consideration of the bias issue well i think if it were a case involving where the crime was committed against the child i guess i'm not completely clear on that on the link link that you're making the bias in my view is i'm not following how how judge mark arts at diction to marijuana would necessarily make him biased one way or the or the marijuana i'm not i don't think that accurately reflects the record do you agree that this is the maybe harder case the terms of the imposition of the death penalty if the sort of thing judge headaches mitigating factor of the impact of drug use that it's a harder case yes the harder case for to justify the imposition of capital punishment it's certainly something that the judge would consider as part of the weighing and balanc a factor here and actually the drug impairment i think was cited as as a mitigating factor so i guess that's just mark part did find that ross he was had a drug addiction and found that to be a marijuana in a cell yeah so that's that's what i was going to point out the page that cited i believe is thirty nine in the transcript that's in the supplemental excerpt of record if you look at the previous page page thirty eight it show that rossi was found guilty of a violation of possession of a non prescription narcotic drug that was a cigarette with a green leafy substance i think the question that's asked it was submitted to the lab it a marijuana it was submitted to the lab is that what the report says i think that it shows that that's not in the prison right up to the lab report but the fine there's a clear finding that rossi was guilty of possessing contraband not the results from the lab are not there it doesn't say the lab tests that it and said that it is this it is not marijuana i think it's just a question of the lab results are not part of the write up and again the point the point that this was being used for was that rossi had violations while in prison not that it was not that the violation was marijuana it was it was write ups and violations offered to counter what what ross you had offered as a potential for rehabilitation and i think this this would be and the supreme court had a chance to review that after after judge marquardt listening to testimony listening to testimony about the write ups and judge marquardt said that he found the his prison record to be neutral that it what it didn't support court have the entire the transcript have the entire record of rossi's violations well his prison record alone is neutral i think is what is what i was getting at and i'm i'm not positive of exactly how marquardt is factoring that in but i  thought it was just relating to the prison record whether that's neutral and then the potential for rehabilitation involves other things and certainly the he provided extensive testimony and i would like to  drove who talked about his family background talked about his difficult childhood in terms of his his weight problems and the things that he faced as as a child dr powers report lists the head injury i think he was hit by a garage door coming down this is all in the in the record prior to the the second sentencing doctor strickland's affidavit makes the allegation of organic brain damage and i  think you have to also keep in mind that that's a little bit inconsistent with arguing potential for rehabilitation the theory at sentencing particularly in light of what the arizona supreme court had said in rossi two was that potential for rehabilitation is something we consider as mitigating he didn't he never said anything in state court about organic brain damage and i think that's a little bit inconsistent my client has organic brain damage that he can never change has to be some indeed of of impairment and certainly in this case where the only the only transcript we're talking about the hearing relates is this very limited hearing just marquardt then having a month and a half i think to deliberate before before imposing sentence and i think that is different from the facts and marquardt or the allegation was he made the decision over the weekend when he said that he was he was on drugs but i think the i would i would go back to the point that there's absolutely no indeed in the in the record in looking at what happened at the sentencing hearing that marquardt was impaired in any way and i guess i again go sentencing judge found an improper aggravating circumstance in this case we don't have any finding like that by by the arizona supreme court there's no indication that mark that mark court relied on improper aggravat there's no indication that he kept out any evidence that should have been admitted so i think rossi's case is weaker than that that was rejected in clements versus mississippi in terms of whether an independent review corrects an his ability to see the meaner of the persons who were testifying at the sentencing here the tone of their voice the way they looked and this is fairly of their statements suggested by judge kozinski it because i do think it opens the door to say anything else certainly alcohol any judge who's been seen to have had too much to drink on a weekend does that open nor for every case do we have to go in and look  suggestion and i don't have any i don't have anything further unless there's any further questions i would like to just sorry i would like to just point out very quickly the smith decision the state court smith's decision does resolve waiver if there's been a finding a preclusion by the state court that does that necessarily means that that is to have a claim that does not require and on the record personal waiver by the defendant and that's all i have to determination i think that the state court was required to hold an evidentiary hearing on this issue to further develop the record on which to make a determination which doesn't have to be correct you can even be wrong and really the question is is an objective leak and reasonable is their objective we know the reasonable basis for the and i would like to address some of the points that the appellate has made i think the demonstrated historic confusion between intelligence and mental illness a unconstitutional in reading ross you raise this issue in his case on appeal however in light of summerland mr rossi is far from obtaining relief from his unconstitutional sentence the issues