and the issue of his competency to stand trial and the issue that i want to focus on is the due process argument the argument that hit the trial court should have conducted a ordered a competency evaluation based on cowan's demeanor and behavior during the trial mr cowles to be clear that ordered a competency hearing before the guilt phase of the trial based on the reaction when the request to change council was denied you where exactly in the trial proceedings that the court should have granted or ordered a hearing is to compensate waxes and wanes but that was like the first indication that mr maybe the way to put it is are two different times perhaps one constitutionally should have been compelled before the guilt phase or during the mitigation phase would that be the way to put it actually i think there's three times during the proceedings that there judge should have been alerted by his behavior and his irrational response to what was going that the court should have stopped the proceedings already hearing the first was at the beginning when he was being rather disruptive and didn't seem to understand what the judge was saying during the trial itself there were indications that his behavior was inappropriate is even the prosecutor noted right before the invisible dog video was shown the prosecutor asked that the judge i'm honest mr cowan's to stop making gestures and he even called it inappropriate behavior the judge said i'm not going to rule on that because it hasn't been disruptive yet but the judge acknowledged that mr cowan to be havior during the trial had been inappropriate and borderline maybe on disruptive and even the judge's final court opinion indicated that his mood waxed and waned from smiling and cooperated even appearing to be paranoid even during the proceedings those all are indications that mr cowan's behavior in demeanor during the trial and it was an honor the experts that were there was an expert presented on post conviction doctor at haskins who provided a decoration or an affidavit saying that she suspected that he might have been incompetent but at that point that was a year after the trial she could not say definitively whether or not he was incompetent and i'm not arguing right now definitively whether or not he was because there's no way of knowing because when nobody stopped the proceedings at that time and order yes you're on it you can the court can issue a writ the court can find that the judge did not the judge had a reasonable suspicion that he may not have been competent he may not have been able to rationally assist counsel and that that was enough to trigger in the judge that that bonafide doubt under drop versus missouri under dusky versus united states cooper versus oklahoma all those cases talk about competency competency doesn't have to be a mental illness doesn't have to be that he even exhibited disruptive behavior during the courtroom it has to do with whether or not he's able to rationalise this counsel whether or not the behavior that he's exhibiting is logical to his ends is logical to what he's trying to accomplish and his behavior all the way through the trial indicated that he was not able to rationally assist counsel or at least there's a question there's a bonus i cut against him that there is no evidence today showing he was  the other correct and you know there are four because everyone agrees there was something unusual every time there's something unusual and a story you always have to have ordered a competency hearing that would be the rule that comes out of this case the rule as the united states supreme court that clearly established federal law is anytime there's a bonafide doubt as to competency anytime there's any kind of indicia of behavior that shows that i mean it let's talk specifically about the addition i mean you have the not getting what he wants a new counsel he reacts negatively to that that's that's not consistent with being a competent that's consistent being competent he's not happy with what happened that's that  makes sense that that's correct if that's the only picture if that's just the snapshot of the case but that isn't that's why we created this we talk about things that go on at the penalty phase again things aren't going well i mean he's not getting what he wants i mean people react negatively when they don't get what they want that's that's rational mr callan's had maintained his innocence all the way through this and all the way through and he exhibited behavior that show that he was paranoid and the judge even acknowledge that he was exhibiting even his court opinion of his guilt i would say not your honor the case against him is very circumstantial and every little piece and while there are pieces of the puzzle that are rather incriminating and hard to explain obviously but it's not overwhelming it took the jury two days to find him guilty even without him testifying even without all those things you'd normally expect the prosecutor in the closing argument of the guilt phase even acknowledge it was a circumstantial evidence case there are errors that happened even in the evidence or a part that i think that we argue contributed to the jury finding him guilty including the invisible dog video that was irrelevant to the issues but the issue about his competency has to do with the reasonable bonafide doubt of the judge that the judge should have had a bonafide doubt they should have had as the tenth circuit held in mcgregor versus gibson competency waxes and wanes you press your  don't have to establish whether or not he was indeed incompetent or not they behave this way i should know this and i don't did any of these attorneys say the judge should do something no one that relevant i mean  seeing this even more firsthand than the judge or anybody else so they they really had a bird's eye view they knew the law i mean one would hope we've made an argument also that the attorneys were ineffective for not asking for a competent hearing but i think what what's interesting is the last word that the attorneys ever were asked and made to the judge was they filed a motion a week maybe less than a week before the trial believe it was march the si before trial started they followed a motion to withdraw saying that mr cowan's was not cooperating with them he was not communicating and that the attorney client relationship had diminished the judge never ruled on it so the last word of the attorneys on this issue about whether or not mr cowan's was able to ration assist to his attorneys got left unanswered by the judge now the inference could be that the attorneys didn't see fit to raise any more issues about it because the judge saw fit not to say anything there could be all kinds of it but i think that's that's a critical component in all this is that the attorneys for example yes that that declaration by dr small there's never been any kind of hearing in this case your honor there's never been a hearing a post conviction or hevia so the only one there was a affidavit submitted on post conviction from dr small then based on his findings and what his mitigation would have been he did was not as to answer the question about competency he did though articulate that mr callan's is not miller retarded but in a low functioning area of intellect and that he does have difficulty with paranoia the it's mr cowles doesn't have a traditional mental health illness like schizophrenia or bipolar he's not miller retarded but he does have significant personality disorders that affected the fact that he never learned any coping skills as a child he was number seventeen of eighteen children who lived in abject poverty was abused by his family all of those things came out dr small the new and the judge wasn't aware of that but i think that those were that's another issue of counsel being ineffective for not presenting that to the judge to explain to the judge why mr cowan's maybe act in the way he is the i also think that the point where mr callan's at the penalty phase after the jury actually the guilt phase after the jury returned the video and he started erupting in the courtroom to everybody and cursing and calling everybody found names and had to be removed from the courtroom that was the tipping point that that shot is not the end all and i got a still struggling with this i greet it in many respects is not the way most people behave but i don't think company incompetency would have been smiling laughing saying thank you  that's irrational what he did was rational in the sense it's impolite it's losing control it's anger management all those things but it's not a cop and it's it's it's a terrible thing is just happened and he's reacting against it but it is raises a question about whether or not he's logically able to assist his counsel and whether or not he's able to understand the proceedings because the attorney even said during the hearing afterwards that mr callan's believed that he would have a different jury deciding his sentence and when he found out the same jury that found him guilty would be finding him whether or not to get the death penalty that's not understanding the process that's not understanding how the jury system works whether or not that's competent i mean that's that's it's a tricky point who would know but incompetency your honor also talks about being able to rationing assist and rashly i understand there is no requirement that there be a mental health component to comp sci question in the traditional sense of when we think of some with schizophrenia or bipolar competency has to do with be able to rationally assist your lawyers as interesting the enough counsel there's no indication that i found in the record that the lawyers asked him to do something give them information or whatever but let's assume that he was disruptive and he was a difficult client which is not unusual in your world i'm sure but there's not there's not even anything from counsel this is the condition that he was in whatever that might prevent them from putting on a defense yes there is you honor in the hearing before when he first asked to be withdrawn the attorneys did state on the record that they had just found out about the jailhouse snitch marvin napier and they want to discuss it with them and mr counsel wouldn't discuss it with them and that he blew up and he thought they were against him and they wouldn't discuss them with him there's nowhere else anything else other than his refusal to discuss the evidence and there's the motion that the attorneys filed  communicating with us and he's not able to rationally assist us i think that reasoning more specifically what did that relate to what was the strategic thing they wanted to talk to him about that he would give input on what that was one of the quandaries there judge is the  attorneys told the judge we can't really tell you what we want to talk about and mr talent even said especially with the state attorney here with the with the prosecutor there they could during the trial but after the trial they could come back and say here's what we needed to know from  here's the information he refused to talk to us or he talked to us and he was delusional we don't have anything like that except he refused to talk about his relationship with a neighbor i write about that that was one component they also said in the motion to withdraw that he wouldn't communicate with them at all about the case in general can i sue because another way of responding to judgment question which i'm just curious about is is a cop and competency problem one for which you don't have to show prejudice circus not u s supreme court is what's troubling well but but there is u s supreme court case because drop versus missouri talks about that which is the case about competency when you don't have to worry about showing prejudice it says once there is a bona fide doubt as to competency the trial has to stop and there has to be a hearing if the judge does not do that if the judge doesn't win that reasonable bonafide doubt is there from the judge then yes that invalidates the whole trial and there needs to be a whole new trial and if then so if you don't so precious i believe it does yes your honor but interestingly enough you go on and and you quote from the part of drop that says even if you're competent at the beginning of the trial you have to be alert to circumstances of might indicate that change so here he has some sort of mental health examination apparently before the trial you've directed us to three incidents during the trial when you contend the competency should have been questioned so am i right in assuming that he has this examination by dr small then whatever that was trial starts he's mad that he doesn't get a new count so in your argument that would then require an examination he's examined they say no he's then you get to the incident where during the trial guilt is determined and he's understandably mad about that so now you have to do another competency examination and then you get into mitigation and there is a question about whether a rational person would would waive in the way in which he did so in this case without any sort of guidance that you're giving us this the very facts of this case show that the trial should have stopped and the should have been as many as four different examinations during the course of this trial but that if that's if the behaviors continue to act if you're just looking at this as a cold record like that then yes that's exactly right because the supreme court has said somebody could become incompetent and even after they've been found competent that there are circumstances that happened during a trial that that are hard to dictate and are hard to articulate in a very specific manner like when this happens you have to do this other than the supreme court has said if there's ever a bonafide doubt as to someone's comp and see the trial must stop and there must be an inquiry made and the they'd be violating clearly established law  the clearly established laws states that drug versus missouri no but i mean it's has to be a reasonable application so you don't you have a situation where they do a competency hearing they find the individual competent he starts misbehaving again and at that point the judge says well you know i've got the prior thing he's obviously lapsing but i just don't think it's appropriate you're saying beyond reasonable to not have another competency hearing well that's not our case you're h was that the hypothetical there is that but you were answering judgment by saying four times yes well yes in the sense of there's a if there's ever a time when the judge should have a bona fide doubt as to whether or not someone does able to wrestle a cyst or rationally understand the proceedings then yes the proceedings need to stop and there needs to be a inquiry into it the reason they ask a question is you're saying that that these incidents here were that bona fide so being mad about not getting new counsel which incidentally you're a federal defender right yes so how many times out of one hundred when you represent somebody do they complain don't they want to rush well all my clients are on death row your honor so go with the cowboy i was you know and i've been doing this for eighteen years and i can tell you the waxing and waning that happens but i get i think the the point is in this case i mean that even taking those steps shots and what you're talking about is not is not a real fair way to be blunt to look at it because it's all i talked about is if there's some sort of seminal moment during the trial that any reasonable person would have said this person's competence using question then i think we've got to try you're found guilty by the jury that's not your rational why would i be mad too so i'm trying to figure out what that someone a moment is here and the only one that i can even arguably figure out is when we get all the way to mitigation  don't say he'd rather die than live a life in prison but he wants to wait right even then he explains that one he thinks the jury is biased against him that's not your rational in his world they just convicted him and he knows and is hired in his mind he's innocent and two he says i don't want to put my family through what would come out during a mitigation phase that's rational well first of all your honor i don't believe the record reflects that mr cowen said he didn't want to put his family through it he just said the jury is biased against me there's a kangaroo court and he there wasn't something about the tourney said that he told the family to not come anymore but that could lead to the other idea if he just ahead thought the jury was biased against him or i know it read it and i don't remember the source that explained that he didn't want to put his family through it by revealing that dysfunctional nature of he would rather die than reveal the dysfunctional nature now that could be somebody dreaming that up you say that didn't happen i don't think the transcript reflects that is clearly i think the declaration that you're talking about is from one of the post conviction witnesses who talked about that wrecked which you want all right fair enough your honor the bottom line is judges that in this case the there are there have been judges that have said yes there should have been a hearing even the ohio supreme court majority said yeah it probably would have been better if there'd been a hearing but we're going to defer to the trial judge which i think that's not a reasonable application of the facts justice moore your said definitely there need to be hearing even the district court here said yes there should have been a hearing the issue here is that the clearly established law is if there's ever any bonafide doubt as to someone's compazine matter when it happens in the trial even if it's just  aggro a couple aggravators and they were instructed by the trial sorry we were they were instructed by the trial court that they had to give death if they aggravators outweigh the mitigators and they had no option because it makes an automatic death heart of mercy that there should be a sentence less than death then you can give that i know that i come from oklahoma i moved here from oklahoma years ago and that is how the jury was instructed and your point your point  completely understand all these death penalty systems that come up defendant doesn't understand it doesn't show incompetency it does in a sense of not being able to rationally understand what he's waving of the mandatory nature of knowing waiver and which ties back into the whole comp and see whether or not he was really able to rashly understand what he was doing but if we're going to try to tie it into competency so as to get around here procedural default i thought the facts in this case where that the judge told him in so many words that were he not were he to proceed with no mitigation he would likely be sentenced to death would likely be since death that's the key word your honor he didn't say you will be sentenced to death and the instruction to the jury was if the aggravators outweigh the mitigators you shall impose death is the jury in one of these cases are not going to know the answer to this but i feel is the jury in one of these cases in title even though nobody identifies something and puts mitigat label on it in the penalty phase is the jury entitled to go back because they're the ones that heard the case and decide whether from what they did here there is something mitigating about that particular defendant such as residual doubt like in this case because he was claiming innocence if a jury had any residual doubt that he might have been guilty maybe they would sit and simplest into my understanding of reading the instructions here your honor is the jury had no choice the jury was told so why would the jury ever understanding is from way of law is the jury actually makes the eligibility determination in the guilt stage when they make the specifications that allow them to go to the death stage and that those are considered part of the aggravators so they've already made that decision when they find him guilty and they find him guilty of the four separate murder counts that involve the robbery in the burglary and all those things and that that makes him already eligible for the death penalty which is why and in the sensing phase the prosecutors don't put on any additional really aggravating evidence it's all about what the product what the state what the defense puts on his mitigation and which is why in this case there was just closing arguments because there was nothing to present good afternoon my name is brenda from the ohio attorney general's office and i represent the warden in this case to start off with some of the questions that you asked petitioners councils your honor the  question of where did the information about him being or having scuse me not wanting to put his family through anything additional was in the small then af davit at post conviction is where that was located that's the psychiatrist who that was the second the psychologist that was hired pretrial to prepare the mitigation he put that in his post conviction affidavit which w admitted again after the guilt phase i'm sorry did he meet with the petitioner again after the guilt phase i do not believe so jurado they had a different and this idea that he didn't want to put his family through it was something he had in his mind before that even though before the guilt phase even start yes your honor in factually only while he was acting rationally exactly your honor don't say exactly with a smile mean that her to a little later on because now he's this was used to show that he was acting rationally and waving mitigation but if the point was raised before all this happened no hopeful it is your honor i would submit that he's been acting rationally this entire time he was acting rationally when he spoke to mr you're right your honor but dr small didn't even put in his post conviction affidavit that at the time he was not unable to gain mr cowan stress to have him open up about his family because he wanted to protect his family did not want to put them through anything else i would submit that that's acting very rationally in that he has a desired goal and he is protecting that goal the test for competency is not whether he actually acts rationally it's whether he has the capability to act rationally the test is kind of i mean one thing in the small now for david i should know was he saying in the context the conversation you were just reporting repeating that he didn't i think you'd want to put any mitigation evidence on no your honor  factors is they could look back to the trial phase and anything that was testified to they could look back and determine whether they there was there were other getting factors before they could have found the the residual doubt argument they could have looked back and use that as a mitigator because one of the mitigating factors is anything about the crime and circumstance or anything about the defendant that could  reasonably and arguably be mitigating the jury's allowed to consider in no time during the journey instructions in this case was the jury said or told that because mr cowan's refused to put on mitigation you must return a verdict of death aggravating circumstances outweighed the mitigating factors you shall return a verdict of death but again as judge certainly indicated that was not an issue that was raised either at  that's not before because if they're worse education the way yes your honor but i would argue that there is no such issue as well so we we had this colloquy before about whether there was prejudice shaadi that he was in common there was no hearing to figure it out we now don't know what is the answer to that i mean because it's not obvious to me i could imagine someone saying this is kind of a structural thing it's so important you would even get to a prejudice inquiry but i could imagine another side of it that you have to show prejudice what's the answer you're i would submit that the answer is that you must show both problems of strickland that there would be prejudice because the will but that's if you're arguing it is ineffective assistance but let's say it's just a pure drop claim hey listen the signals were there a hearing should have been held hearing was not held just after you've shown all that does the defender really have to come forward and show how this would have  difference i believe even under drop your honor he would need to show how this would make a difference because if the argument is if there are just some doubt and i would submit that there is no bonafide doubt in this case but if the ruling out of this court would be that if there's some doubt that they would have to hold a competency hearing we would end up having cases invalidated for reasons that the panel has described you know the fact that he doesn't get what he wants he acts out that's exactly what this defendant is well i don't want to spend too much time on it because people are arguing it but it doesn't seem it seems to me like you wouldn't surprise us on the stand how someone's truly incompetent where would you start in figuring out how this prejudice by definition you can't know you can't trust the things he didn't ask right so there's all the things he could have done had he been cop and he didn't do so it's just pure silence you might have things the attorney can say they would have done or tried do and get anywhere but i don't it seems like an impossible inquiry what your honor you would not get to the prejudice in this case because there is no bond i doubt i'd get i get your argument on that point i'm just curious about the other one now in  about how the search was not adequately argued at the search warrant stage and we would submit that there is no ineffective assistance of course your honor that was one of the now as to the the competency we would certainly argue that he was confident that there was no bona fide issue of his competency we would also submit that mr collins was adequately aware of the fact that he was waiving mitigation could and most certainly had the possibility of having a death sentence because he went through a colloquy with the trial court which lasted over two days in which the trial court asked him repeatedly are you sure you want to do this do you understand what this means and explain to me the trial court to mr counts explain to me why you want to that if you take this course of action these are the possible consequences which is certainly appropriate but not constitutionally required but the trial court an abundance of caution was trying to inform him in cases attorneys had not but his attorneys even indicated they had also gone through lengthy discussions with him about the consequences of his decision and he was fully aware both through his counsel in the representations of counsel as well as from the trial court today colloquy that his waiver of mitigation could result in the death penalty and in addition the fact that he professed his innocence all through the trial is further reason to waive for a defendant to possibly waive mitigation because he would then have a situation where the defendant says i'm innocent however if did this i had good everything that sounds like the norm that's hardly the norm that people that profess their innocence don't put on mitigating evidence that's just not the norm in ohio that has happened in multiple cases you had that in ashworth you also had that in  adamantly professor in a sense they they can and do waive mitigation and i'm not saying that that happens all the time but it is a logical choice for a defendant and the fact that he waives mitigation should not be held to be a reason of possible you know a boy or that's ever recommended that i do not know of of an attorney that has ever recommended it in fact most of the defense bar i believe would try to talk them out of that y book your honor i believe that that issue has been waived by counsel i would also believe that there is no automatic death penalty because the jury was not told that you must return a verdict of death because he did not present it was his choice your honor and it was a rational choice and there's no place in the room that sometime is right so that's basically what i would argue that that he is committing suicide but your honor there's no united states court united states supreme court precedent that says that a waiver must be a supreme court p defendant at actively prevented his counsel from obtaining mitigation evidence and the supreme court of the united states said that we've never said that you have  a mandate that a defendant must submit mitigation against his will and that there is no requirement of knowing and intelligent waiver of mitigation at the same point but it is similar is that you know people waive appeals all the time you know in fact you know they decide i'm not going to appeal anymore or you know the death you know the execution date is a couple months out the lawyers tom you could try the federal try second for the success of the petition you could try something at the state and they will try it but it's not the same thing as waving mitigation i must say but i don't think people say that proves you're incompetent that's exactly right your honor and that's that's exactly where i was going with that that you know just  before you go down that another path that i should i take it back to just here competency yes for a minute what would drop is talking about is what what the conditions are what somebody should be looking at to question doesn't tell us what happens competence as i understand it whether we're talking about confidence to stand trial before the trial starts or a question of competency to continue with the trial i think and this is where i want you to tell me if i'm going down the wrong path here talks about whether somebody is able to understand the nature of the charges against him now what i'm trying to figure out in terms of these three stages of the trial where this guy either act murdered this woman and tiger with an extension cord to the refrigerator is there any is there any place on the record that where he said or did anything that suggest to you that he didn't understand what he was charged to know your honor then we go on to the second problem which is effectively in a recession only assistant his defense so i think there was a suggestion earlier that i might have been asking about that because i was then going to go to prejudice i was going to go to prejudice at all it seems to me that the reason that one would inquire as to whether there's any evidence that he that he had problems with this attorney with his attorneys is that's how you would look to the question of whether he could effectively and rationally insist the system is defense which did the lawyers ask him about anything did they ask him to explain something to direct them this direction or that direction and all we've heard so far is that he would talk about his relationship with his cellmate right yes you're right so is there anything other than the need incident that would suggest not for prejudice purposes but rather for competency purposes whether he could or could not affect effectively and rationally assist in his defense because i don't see where this acting out ipso facto has anything to do with whether he could effectively rationally assistant his defense your honor i don't believe that there's anything in the record that indicates that he could not assist his attorneys and in fact there's ample evidence in the record that absent and after the court denied him repeatedly  new attorney that he actually did listen to them when he was removed from the court room and placed with an attorney that the attorney was able to communicate with him brought back those messages to the court and said you know your honor i've talked to him he does not wish to come back to court he does not wish to be put back in the the little room downstairs with the t v he wants to go back to jail he was communicating with his attorneys now the test is not whether the decisions he makes are good decisions the test is whether he can make decisions and in this case he was able to make decisions whether that they were they were not in his best interests they were still rational decisions and the rational decisions in his mind he was directing his attorneys with what they  wanted and you know the test for competency is is not whether the is not whether he had capacity to reason logically by choosing means related logically to his ends i'm sorry the test is whether he had the capacity to reason logically by choosing means related to logically to assent not whether he actually employed those means before we get into that speculation that one of the issues here as i understand it was and i'm not sure if this is the right word reuse is an alibi defense he this woman was killed the night before and he had an alibi for where he was now some of that had to a been developed as a theory and there's so there must have been some sort of communication between  correct the record slightly the state's evidence was that the murder happened sometime around eight o'clock in the morning he did claim that he had an alibi for eight o'clock in the morning but obviously had to have been conveyed to his  communication and discussion that led to that yes your honor so i can understand why during the trial it would be fair to put to the lawyers to explain exactly what they were asking him and what he refused to help them with but certainly after trial one would anticipate that if he couldn't effectively and rationally assist as defense the lawyers would have said this is what i what we needed him to tell us or to direct us to serve or whatever w is there anything in this record where the lawyers called upon him for any purpose and he couldn't or wouldn't participate your honor the only place in the record that that is to be found is pretrial when they had first filed their motion to withdraw when they went to talk about both the maybe your testimony the jailhouse snitch as well as the palm print evidence he did not want to talk to them it wasn't that he was on able to if he did not want to talk about that piece of evidence other than those two specific examples the trial counsel never put in the record any other time period where  any specifics as to what he would not do or talk to them about it's fairly clear that the attorneys never had any bonafide doubt they never raised a competency during the trial as well as the prosecutor never raised his disruptive behavior was in dishes of incompetence neither did the trial judge and gathering he provided information to them as to why his might have been found in the way he provided an explanation as to how the figurine whatever else it was showed up in his closet and he explained that he did get it from the material by the tree in the yard but that he didn't put it there so a lot of what came in came from him to his lawyers on your honor i would submit that that would be correct that would be the only logical place that the attorneys would have been able to come up with with waxed and waned your honor that they may argue that i would submit that would be an incorrect assessment of this case i don't believe that his competency was ever at issue he was  areas i have not seen anything with through the state court system at all about about that and that certainly was was not raised at the federal level that i'm aware of enough mental health but the ineffectiveness for not even doing a more thorough mitigation investigation because i think dr small than maybe dr haskins had indicated that he should have a neuro psychological evaluation and that never happened before trial so d from not objecting to some of the mitigation or some of the press corps in this conduct not objecting to some of the evidence not requesting other forensic experts like a pathologist there's the maybe it's two now where he didn't help the jailhouse snitch and maybe part of the palm print but anyway let's just say for the sake of argument there are two or he didn't help but you know there's lots where he did that's that just doesn't standard is whether he is able to so we have to figure out if he didn't help during certain phases why didn't help did he help did he not help because he couldn't or did he not help just because for whatever reason he was mad he didn't callan's has an inability to deal with stress and he has poor coping skills because of his upbringing because of his family background which is the medication that he had for him and ability to cope with the stress and the stress of the trial pretrial all the way through and culminated into his blow up after the guilty verdict and the test from the united states supreme court if i might under drove verses missouri this is the true yes  versus missouri which is for twenty us one sixty two the court said in pate versus robinson we held that the failure to observe procedures adequate to protect and defend its right not to be tried or convicted while a competent to stand trial deprives them of his due process right to a fair trial so i think that kind of answers the question of you know do we have to show prejudice we don't have to show prejudice if there is a nothing here to indicate that he may have been may have been incompetent somewhere in this the problem is you've got a barrier here to overcome the most impossible to overcome unless the conduct and behavior of the defendant is a much  competency it's not being able rationally and not being able to understand the nature of the procedure correct and they were i don't see any evidence in this case that he didn't understand the nature of the proceedings well at least at the sentencing stage you know i think it completely should have ordered a hearing and it goes back it doesn't mean that he could never be tried again it didn't even mean at the time if the judge had conducted a hearing that he could never be tried again it just means there needs to be a stop in the trial so there could be a further understanding and explaining before the trial would proceed let me just seek to clarify one point you made so i understand it when you were talking with me earlier and with judge moore about the whether it was able to understand the nature of the charges you sort of morphed into he wasn't you claim that he might not have been able to understand the nature of the mitigation phase of the proceedings for now that's different than the nature of the charges which were that he had murdered this woman so is there anything that it that extends this definition of competency that includes understand the nature of the charges to understand how really that he needs a new sense of hearing but i'd but the argument that i'm presenting to the court is that that is just a snapshot of what the stress of the trial that made him unable to rationally insist that was the most kind of obvious from the record that he was able to rationally understand that proceeding and that there can be a separate proceedings or can be he could be competent for the first stage but incompetent for the second stage in the purposes of not fully understanding the proceedings i do have and things i'd like to say but i'm sure they're excellent but i think we've heard enough thank you to both of you for your excellent briefs oral arguments these are very difficult cases and it helps us greatly to have such acts on attorney so thank you very much and if i might just take a well that's great welcome and did a great job thank you all right thank you very much the case will be submitted