demonstrated risk of severe pain he must show that the risk of the financial when compared to the known and available alternatives looks like it's two tests to a test is that correct  opinion but i think that really salient point about what has applied if we are here with an unknown and it's our view that it simply inappropriate to apply a burden or no question then becomes but doesn't that cut against you know other words if you need to show and at least in the response of chief justice roberts to  would be insensible to significant pain sorrow was written assuming the use of a known and i would add that effect what we're dealing with here is a drug that has no track record we don't know doesn't when you look at the protocol isn't a protocol much broader than just the three drug sequence the protocol also or the steps that delaware is required has required themselves to those abstract consciousness trance however they still might be sensible to pain he still may be able to feel the significant pain that would be coarse by the injection of the second to drugs and that the critical difference between when they're using a not proven anesthetic if they were using solution you know were some some drug that you know of article that we just don't have any track record on no i'm and it in large measure it seems that the reason there haven't been a whole lot of clinical studies it is because this is not used as an end of the end of prestige or for the regular operations because it's extremely difficult someone out of this type of coma which is exactly the thing you don't want to have happen so but it is good that that's been given to us whether you say whether  it's what i suggested to you from pais or even a more narrow rosen of that it still seems the ball is in your court to show in some way shape or form that what is done here  to do what and the step that you're asking for it seems to me is to stay to give this court a chance to review your appeal from judge robinson's decision yesterday to deny your drugs now if that's it that run contrary i mean basically what you're saying is every time that there is a change in drugs you're going to put a court whichever one vote it be the district were the supreme court in the position of say i don't think it would be anything to say it's not a matter of being a board of inquiry it's not micromanaging a minor change this is a fundamental change in protocol that was approved by this court and i just robinson pursuant to base that and the use of an actual true real anesthetic if there's not an anesthetic we don't know how it works and the proper we've made is that in two weeks an execution we've seen  than delaware i don't think they are significantly different and might be a minor difference in terms of when the consciousness check takes place but the same problems exist you know whether it's a consciousness check every two minutes or three minutes  that at least some witnesses believe that there were problems and in their minds some question as to whether the person was completely unconscious the was there any evidence that those were for lack of a better word botched  discovery and entry development of this issue in order to know for example when judge robinson asked what discovery would you like we sat there we would invasion doing some very party discovery let's get the records from the palin blankenship jurisdiction to see when the drugs were administered on what notes were taken by the members of the injection teams and those who were observing the seat what actually happened and other technical data that's in the get standard understand szell response serious harm until the defendant can come forward and say we're using a proper anesthetic and if they're not able to do that which they can't in this case the injection method have various checks of consciousness at some point regardless of how many minutes it is as to how the person is responding and if the person i stand his response he gave yesterday to that end but to put the question is rather than use saying what happens you've got protocols in place for checks that must be done before you administer the second and third doses of drugs i should say and those right suggestions would you have with eventually five milligrams will kill the prisoner that's why we suggested it as a proper one drug protocol but if you're using the second two drugs and it's in a question there's a lot that to be able to answer the question does the prisoner achieve the proper level of anesthetic that he can your expert can't do it yet and proffered an expert to do it and that's because there's no answer there's no data ok why don't we hear from mr wallace on this issue to decide the rule sixty b motion on the basis of popper's that evidence committed in other cases and not take actual testimony and i assume not have witnessed the video of the execution lest th but more importantly under rule sixty eight actually the taking of evidence and discovery it highly extraordinary and circuit and elsewhere and i believe when judge robinson i state with an issue and it will be precise expert that they wish to bring before and to start a trial and on other execution that in fact she undertook what be appropriate that that any court would take under rule if there's evidence of the eighteen execution i guess maybe it was may team there were two of them where people believed i guess they believe strongly that there they all the rest of the witnesses there's no evidence that they noticed anything that those few persons claimed and the other one was one reporter and if you look at dr e observations of the medical examiner who was in fact present in the quarters who were present and all of the other witnesses the reality is in a dynamic situation like that in probably a very emotional situation like that very people are going to have i'm sure about alabama right and off the top of my head how many names today but turning to delaware the most important aspect of this is there is a consciousness jack and that is that no matter whether it longer for that to act there is a consciousness jack and nothing moves forward until that and that's why i think that won't tell you refused to tell you what else he believes there needs to be done other than you do some other drug in other states obviously it's quite clear if we look at other states because you're talking about a unique activity here you know the judicial execution of a human being in a way that consistent with the eighth amendment to look at what other jurisdictions have done and whether they have done it properly is the most appropriate way to deal with it and interestingly you draw that in to be getting of it very litigation the other  when you do the check for consciousness and i looked at some of the stuff that this the state has here in terms of what's done it looks that it almost looks like they're trying to see if there's any response to voice and tactile stimulation is there anything beyond that is there any monitor the cooked up that would give you an indication that that one could assess camera which allowed the idea that the person so it's not just one person who engages in yeah oh yeah the person's name to listen for sound engaging in an act of stimulation engaging in the i brush all of which were apply to this case but going forward in the future would delaware consider at some point an amendment of its protocols so that there would be a five minute wait or whatever as opposed to something longer than the two minutes the currently exists i think  what is very different than any medical procedure and that is to ensure the thinking and doing of the right in in a way that reasonable i do you know i think the court only  look at the history of this litigation and that is that delaware will continue to try to improve and insure you are ready where possible and reasonable the reality is is that the defense talked about in the first litigation i think yes your honor that if there are improvements to be made it five in a fraction will continue to do that just as it has done through this litigation and just as it has gotten to where it is now i can  ocean in that case and the property that was made to determine whether or not she should reopen the judgment certainly did not abuse her discretion to charge of and you have any questions  nothing moves forward without a consciousness check and that the persons doing the consciousness check at least two of whom on this team have to have medical train can still be the suffer pain with the injection of the second and third drugs but and i keep coming back and the problem i have is you have to show that in some way and i think  that after one minute or a minute you know most everyone would be insensitive to pay you know i have a couple of teenagers at home and i try to wake them up and i shake their shoulder and call their name i don't usually get a response if i if the one thing that comes out pretty clearly is that we are not a ok the courts are not to engage in what is the best practices what is you know we don't resolve the scientific controversy it is it is something that you just go with what the people have and you question the question is is it cruel and unusual and to make it cruel or unusual you have to show that there is a substantial risk that the person is suffer spain at the time of the second and third drugs being injected and i don't see anything in the record the only time the only thing that i know of that the been put in the record so far is that in two mean five minutes but obviously we would work as quickly as possible because out of all witnesses and you know we understand the time pressures here and you know what i would think that under the whole set of allegations and the fact that they picked a drug that ha no record that we should be able to prove our contentions you know if it takes a week or takes three weeks the florida supreme court ordered hearing and i believe it's taking place this week you know so within a matter of  having looked at what the court did another panel of the court in two thousand and seven it looks as if the court looked pretty carefully even though they dismissed that at the evidence that was done before but concerning actual innocence now you've made a claim that you have new evidence that includes among other things mr lee schatz admission that he himself struck the fatal blows new evidence about the state's concealed deals with key witnesses in new evidence that mr jackson was physically incapable of willing to murder weapon starting with the last one first at bat was before the court in two thousand and seven was it not just run and what about the what about the evidence about the deals with key witness hidden in there what was not available that's probably stuck in between but the point of all this is of the diligence question is that's really a very factually intensive question which the district courts address and first instance but better to the point disposition we asked for permission to file the petition there is it so that it's the same as for example if you actually file a petition and it's just a mess without prejudice there's no successive petition bartz of those  what i'm saying i just don't see any any way that we can entertain this new twenty four to forty four petition and in light of what another argument we have is that assuming the panel in two thousand and seven held that we hadn't made upon the face a showing of innocence of the offense because i believe he was still guilty of felony murder we have now made a show on and  here and there's never been an evidentiary hearing on us all the details of the back and forth arguments about various sections of the us code i think should really be dealt with by the district court after hearing from the witnesses and we're that gives you the right to that he based on the evidence that could've been discovered through due diligence that you should authorize filing and the district court put in the problem that you have that the two thousand and seven order specifically said that the patient had to