please the court counsel in the brief time that i have to address the court this morning i intend to confine my remarks to the issue pertaining to the deficiencies in the oregon state destroyed system concerning the determination characterized the burden of proof of the stablished and allocated by the oregon statute dealing with the determination of a defendant's confidence stand trial as quote unquote clear we now know based on respondents arguments in this case and the history of mr lounsbury is procedures there in not it is not just unclear but the statutory provisions differ came to the determination of the question of an individual's compas to stand s pertaining to due process so shaped by the risk of error inherent in the truth finding process the court went on the say that since the litigants and the fact finder must know at the outset of a given proceeding how the risk of error will be allocated necessarily must be calibrated in advance retrospective case by case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective eventually standard we have no idea looking at the record in this case raised before this court based on the precedents that were in place at that particular point in time clearly those lawyers did that in order to have the court reach a determination that was critical to the process of decision that  that is being made puts respect to the particular issue in this case neither the statutory structure nor the trial court when pressed on that issue articulate as either a standard or if the court alkie the burden  basically to the prosecutor who had argued that they needed to present nothing and that in fact the burden was to be borne by the defense with respect to the trauma national conference and all the court says i don't agree with your observations  and not only did he reject their their their opinions out of hand but all recycled asian of what he reviewed he's very specifically i reviewed what they said in the first proceeding and then i conclude that dr hall thing the state employee has the better don't usual rule years is that somebody is presumed competent the birth of the burden is on under oregon law the burden is on the person coming forward the movement to establish something the fact at issue in order to obtain relief six and so on the usual standard of proof of the burden of proof allocation under oregon law the burden of proof would be on the defend the driver says well i don't really need to decide that because you know essentially both of you allocate that burden of proof to anybody any sort of particular and so to answer your question specifically perhaps there would be some way for a defendant he say or it would've been to say well i didn't know whether i had the burden of proof and i need to know whether i have the burden of proof because i need to know whether i need to come forward with evidence to establish something and or whether i can just sit back and require as you have saying prove it and i think that you're going in this case so even if that w answer the question by saying i find that the defendant is competent in other words the court after considering all of the evidence and didn't use the burden of proof analysis in order to determine of argument that well if i had known what the burden of proof lies i would have tried this case differently i would have presented evidence differently i don't recall the death that argument ever was made before the trial court that that argument was ever made for you or feels without argument was ev assist the question before the court is one of due process are the procedures established by the state of oregon adequate to protect the rights of the fundamental right of the defendant to be tried only when competent the state's position all cases that predated the decision in this case this court the ninth circuit has recognized that you don't need a spot of chaff in order to have a resolution under twenty two thirty forty one come out to find that and these will application of  how important it is and what needs to be brought to bear in terms of making the resolution and whatever standards this judge was addressed and his articulation of his reasoning demonstrate just how adrift he was because he left out of his summation of an entire proceeding