we don't look on those kinds of motions with much favor we conduct proceedings in open court as a general proposition so we'll start out in that context if there's something that the lawyers need to say indeed argue about the day think is sealed and if they're gonna breach some ceiling rolling made by the district court you can hold it to the end or you can let us know in and we'll perhaps involves whether the lower court erred in finding that the government proved by clear and convincing evidence that you come and be extremely limited in what is your problem that well you're out of the problem is  that the entire hearing below was sealed therefore the exhibits which other studies are involved were also sealed every there are five forensic evaluations done of the defendant which are key to this issue which are all sealed basically i mean the very fact of his diagnosis sealed other than the procedural history there's very little that i can discuss this entire volume of the court found that a syllogistic reasoning cannot be used to justify forcible medication in other words the expert cannot simply say the person suffers from illness a and that illness is treated by forcible medication and therefore this person can be restored by force or medication and that is exactly what the expert did here i cannot comment on what the expert said in his reports or  testimony to the fact that that's all sealed i can say that the expert did not refer to various of mr abney personal characteristics that should go into the calculation of whether a particular medication basis for the ceiling was the you know the very sensitive personal medical information pertaining to mr abney and you know the fact he's been convicted of nothing and this personal information is going to be exposed in this not why did they need not meet the standard the appropriate standard because according to evans and watson it's not sufficient to say that a person suffering from a particular illness and and sort of generally speaking that illness is treatable with medication therefore that person is treatable one has to look at individual characteristics such as their disease duration the disease onset their age are the studies i think i can say in general studies on these things refer to various factors like that which were not taken into account basically the doctor said i believe he illness i know this illness is treatable therefore he's substantially likely to be restored and that's insufficient under the published studies in this area yes he did and i was prepared to discuss why i don't believe that published on why you think the published studies that were relied upon were not compelling very well i'm certainly prepared to do that i wasn't quite sure the effect of sealing on the cities but to the extent that they are published studies for example and i can't say a lot without seeing what the diagnosis is which is sealed but for example there was a study cited by mosman in which the expert relied on that to say seventy five percent of two hundred sixty eight incompetent inmates were restored however not all of those people had the illness that my client is alleged to have only one hundred sixty six people had that and sixty three of those people were not restored in that city not even all of them were treated with medication there's no indication that those that were treated with forcible medication and in fact the study itself i'm sorry and in fact the study itself courts commented on her bell's study which actually it's a study of seven twenty two people's paper files it involves a condition that my client does not have it is not relevant to whether his condition can be restored by supposed medication need to evaluate academic literature live within as i read it the conclusion at issue was based in large measure own personal observation a personal observation isn't isn't such a personal observation gets you to the point of figuring out what the diagnosis and the diagnosis is basically now acting as a proxy as a stand report which makes this recommendation mentions my client's name twice one of them is in reference to the study that does not apply to him and one isn't sort of a conclusory way i don't it's very very short it doesn't it's almost like a cut and paste could be applied after it describes his illness explaining why forcible medication won't be substantial likely to restore him doesn't say anything about him in particular so that leaves us with the firm and definite conviction that a mistake was made i believe become routine and if every person with this illness is diagnosed and therefore has ipso facto restorable by forcible medication then so watson evans have essentially been got it so it is pot it is possible that the and in this case given how little he said in his testimony how little he put in his report the fact that the studies don't actually support the conclusion that he made leads me to believe and the fact that the lower court's order basically says diagnosis and so when i'm talking about the diagnosis that's the one that this particular defendant has at the outset state that we would ask this court to reverse the district court's decision denying our motion to unseal a record just before we filed our brief in this case last november we moved to district court and made arguments as to why this case should be unsealed including that none of the prior cases in this area of the law are sealed and they all discuss private medical information the same way this case does nothing about those w rejection of our motion but in the alternative we ask that it be unsealed and then you're just going back to what happened to score below at the time the sealing orders first came up it wasn't clear to the government that this would be an appeal that this would be an issue  this defendant may or may not be held to account for his conduct and that's the reason underlying the other cases in this area as well evans bush watson white she cannot publish case just two years ago none of these cases were sealed  that being said your honor happy to move on and adjust the arguments with that in mind so the district court read the reports there were an extensive amount of reports the district court heard testimony from the witnesses and it heard arguments from the parties and it decided that the government had established that involuntary medication was permissible under sell and because that decision was not clearly erroneous this court should affirm the in terms of the syllogism argument that mis characterize the government's position on appeal it is not a syllogism that the defendant has his diagnosis that diagnosis is treatable therefore the defendant was likely to be restored it's more than that it's considering the age the nature makes responsiveness positive responsiveness more likely that's right the evidence in the record showed in the district court acknowledge that first episode patients are more likely to be restored and younger patients are more let me restore fast all of the personal characteristics unique to this defendant counsel in favor of a restore ability conclusion the record established that most in comp the vast majority of incompetent defendants with his diagnosis are stored the same is true for those who are who are treated in voluntarily and again like i mentioned before younger patients are more successful first episode patients are more successful than that he's not taking our side effects go this defendant has no medical condition no serious medical condition that would pose an obstacle or an issue with the side effects with the drug that's proposed to be treated with i feel as i should not refer to that specific drug but this defendant is also not taking any other medications that that drug may interfere with so this is a case where all the personal characteristics unique to this defendant way in favor of restore ability as to the point that my colleague man about the studies in this case stepping back my first response is that this is undermines the decision and there's no feeling that a definite mistake has been made on this record addressed to the studies that she referenced just because they came up at oral argument but these are class these are examples for why this core is not in the business of rewiring the evidence that the district court thoroughly considered the my colleague quoted from the mosman study and talked about the comparative difficulty restoring the defendant's diagnosis well first it's comparative difficulty based alleged in one study but sixty two percent of those with that diagnosis were restored so to the extent that she's arguing well he's not restorable that's not what the study shows and then my my colleague is quoting from the study itself and stating that the author does not reckon i'm looking at joint appendix to ninety one right now your honour's the study states i do not recommend that forensic examiners use my predictive equations to calculate probabilities of restoration but then the next sentence says as follows my findings provide support for two circumstances in which mental health experts may have pined that there is a low chance so first where the defendant has a long standing psychic disorder and second if the defendant has an irredeemable cognitive disorder and stepping back in any event the whole gist of that study that's the mosman study from two thousand and seven is that previously there was passing the cement and judge floyd you may be familiar with this criticize the district court for relying on or the or the psychologist for rely on that study because that study didn't specifically address defense with this disorder but again if you read the study and again that's that's not the gist of clear review but if you read the study it states that we find a successful treatment outcome for delusional disorder this is in evans and bush it states as much in those decisions the herbal study also says this is similar defendants with this defendant's condition so while that study wasn't necessarily about this defense condition the language in that study talks about how patients with his condition who are treated in voluntarily are substantially likely to be restored upwards of eighty or ninety percent i also want to comment on my colleague's observation about the relative import of personal observations and i think judge judge duncan you also asked about this the government's position is not that well  evaluated the defendant multiple times over a almost three year period of time that i'm not sure that that actually was sealed your honor it does it just reinforces the difficulty of that's that's true your honor the the point is this we're not relying on the doctor's personal observations alone those observations are helpful the fact that he spent that much time with the defendant is certainly supports his conclu this this doctor had an opportunity to the defendant criticizes the decision for not following the course of illness or the particular symptomology there is no one in this case who is more familiar with the during the course of the illness or the particular symptomology than that doctor and it's not just his observations it's what he stated about the state of the research with respect to those observations so he pointed out this defendant has that condition the research says that condition is highly likely  grossly mis characterize the nature of the reports that the doctor wrote in this case but more importantly the testimony that he gave and the test one of the that he gave showed without any doubt that he was intimately familiar with the defendant's condition the the lack of other medications the nature of the research on this topic and it's it's the report in conjunction with the testimony that the district court considered the last point i want to make in response to what my colleague stated was with respect to to watson and how watson was a case in which the assessment was even more particularized than it was here that that's not true there were no numerous flaws in the report and watson there was competing expert testimony that the condition at issue in watson was or was not restorable the studies that relied on with respect to that condition were in the court's words equivocal and they didn't relate to the proposed medication that the doctors and watson were planning to give to that friend here the i've already gone over all the ways in which the characteristics of the defendant were explored and explain and highlighted by the psychologist in the district court but the psychologist also explain why he was planning to treat the defendant with the particular medication that he proposed and he explained that first generation second generation and i socratic medication is equally effective against his condition he explained that the medicine he proposed was a first generation medicine he explained that there are different types of side effects one category of side effects was more likely with the first generation another category was more likely with the second generation however he stated that on balance due to the defense age and the early onset of his symptoms he didn't expect there to be an issue with regard to side effects especially because there were no other medications at issue and there's no other medical condition and in addition he cited research i'd point to the lad study the last study is in the public domain and the last study explains that in fact in voluntarily a patients treated in voluntarily with the very medication at issue  here for the condition that the defendant has were substantially likely to be restored and so in fact there's a great deal of support on the record with respect to both the reports and the testimony unless the court has as for any further questions from the government we would submit on the you ations was able to describe the symptoms however i believe the government council just did a better job of trying to synthesize mr obvious personal characteristics than the expert at the section i believe it's page three fifty five of the restore these kinds of medication restore ninety percent of people but when you look at what he citing it doesn't see that the studies do not they aren't limited to people with this illness than the nicholson they only they only about many of the people in that study also did not have the same illness and they were studied it with the study considered whether they were stored after a period of hospitalization and really had nothing to do with how they were treated so if if the fact that the these medications can restore this illness is so obvious these studies should very clearly say we've looked at scores of people we've controlled for all of these factors this many people and to add that i'm concerned that if this diagnosis becomes a proxy for being amenable or substantial likely to be restored by medication there needs to be a greater degree of certainty yes of the diagnosis than there was in this case  there's been a great mr abney has been diagnosed with a host of illnesses over the past five years there were findings of competency not competency  different symptoms so i don't think that the doctor i don't think there there's been a demonstration by clear and convincing evidence that he even has this disorder and without that his own expert did not very in diagnosing the disorder of fish the diagnosis is slightly different and in fact that experts as something i cannot say how of it to that point it but it is a slightly different take gnosis and it was a provisional diagnosis as well because it's been unfolding and there's been a great degree of disagreement between various providers that have seen him  these things psychiatric conditions are often difficult to diagnose and evolve over time but there needs if we're going to deprive this person of his liberty to the extent that a forcible medication order entails there has to be a greater degree of certainty than there is here it is a massive interruption of liberty it's a you know basically a team and right year it goes into his cell puts him in five point restraints on a bed rips off  the physicians order simply lacked the individual ised factors that evans and bush and watching this quarter's repeatedly said have to be present and i apologize for the difficulty with the