please the court in federal habeas witherspoon which claims are reviewed under a doubly deferential standard that requires their denial if there is any arguable based the court record to support a finding of substantial impairment in turn to find substantial impairment it is enough that the trial judge simply have a definite impression that the particular when i remember would be unable to faithfully and impartially apply the law and that finding need not be proven with unmistakable clarit concerning matthew stringer than i remember upon which the court below granted federal habeas relief by the bases either individually or cumulatively support the court of criminal appeals affirmed it's of his excusal and four bases support patricia cruz's excuse old and excuse of at the lower court did not even think debatable amongst journalists of reason and shared bases for these been ira members are on their questionnaires to the trial judge fact i believe that it is an implicit determination by the c c a that the trial judge did have the questionnaires i also believe that the record supports that the trial judge was looking at the questionnaires your honor specifically now i'm aware of what you all pointed to but i'm just wondering like do we even get there because you know i've certainly seen lawyers say wow i think the judge read what i filed well ok i mean you never really going to prove what the judge sitting in his or her chambers is doing whether they've actually read your brief they've read the record away or whatever but we we don't make rulings based on that and go wow to rule this way she must not read the brief we don't rule that way because as long as the brief was are we have to assume the judge read it absent showing something that they did right that's so it does that and that would be like even on direct appeal but here in the twenty two fifty four context in that the assumption we need to make absent a showing that in this in this particular county they don't give the questionnaire to the judge or something like that i fully agree with that your honor and indeed if the court were to turn its attention to united states versus snorer which is a direct new case  concerning witherspoon which there is a mention of what was in the questionnaire being different than what was talked about it more dire and there is no mention in that record at least from the review of the opinion that the trial judge had either considered th me ask you something that wasn't raised in your his brief that i just want to know if this should come up while we're conferring on the case you know the supreme court is considering madison versus alabama which has to do with somebody who doesn't remember why he's being executed i realize that's not the situation we have here it's a more extreme situation but if the supreme court were to rule for the defendant in that case tell me how you would argue  does or doesn't impact this case i presume that is under the eighth amendment claim that they have raised your honor i think in this particular case because there's already been a ruling on whether the decision any opinion that comes out from the supreme court after that was decided in state a b s in this case cannot be considered the you would rely on shoop for that proposition that she was the one that said we can't look at more  it's the supreme court precedent that is in existence at the time of the relevant state court decision that's plainly contrary to decisions that distinguish between some error or change in the law and  us supreme court decisions that make certain people categorically ineligible for the death penalty i thought they made that clear i think that that your honor would be relevant to the t d now also is but not relevant to the or d the term used to be mentally retarded that people could rise to claim after ak and even though actions was decided after all of these courts have ruled that was applied if people were allowed to  declared ineligible of the day that's purely based on atkins i think in those situations your honor those individuals were permitted to file in second or successive petition and that this court cleared that that on authorization so if the supreme court were to ultimately decide that the mentally ill could not be executed that would be a good course for relief in this situation but not to review the state court decision here and find it unreasonable based on interpretation execution not from judgment of the judgment of execution this sentence your honor that would be where relief would occur but in this particular instance because of when this particular decision was rendered the only way that that could occur is if they filed the second or successive but that i don't believe that this court can consider the law that has developed host developments in atkins we sent most of these we state our case and sent most of these back for them to go to the state court first because one thing in this case is we don't actually know if smith is mentally ill we're sort of assuming that argue endo for purposes of this exchange but there's a big debate about whether he actually does have schizophrenia right i would disagree with that your honor the tug was the state havior sport found that he did not have schizophrenia and as a result of that that's a presumed correct fact finding and there is nothing in this thread would that be a second answer to the madison question that because they found him my last a big debate they still disagreeing they still think he has it they think the ineffectiveness of counsel is why you know that wasn't and so forth and and i know the state a g s looked at that but your argument would be wow you would have to give deference to the fact finding the state havey is court and so even if the supreme court said we can go back and kind of undo execution judgments based on this mentally ill issue he's not  yes your honor at least not mentally ill enough yes you're right and that is a problem with their their claim is that they haven't really defined what seriously mentally ill is we don't know whether it includes schizophrenia we don't know whether it includes for example in my brief an individual with eighty eight who is substantially impaired being able to count money there is no clear definition of what they mean by seriously mentally ill here which is another reason why the state court's decision was reasonable they have not provided sufficient guidance you can show who would be categorically exempt or what that classification would someone you can treat schizophrenia it isn't always successful but it is in many instances successful so that's different from intellectual disability or what used to be called male retardation where there really isn't a treatment and you can certainly educate and work with people that have limited mental skills but it's different from and psychiatric disorder it is your honor and i in this case one of the reasons why it appears that he is not schizophrenia is because despite having no treatment whether that is through face to face interaction with a mental health expert or through episodic but if we look at what they're relying upon in this particular case it's a few months from late ninety five to early ninety six where he was not adjusting well to prison and  according to t t c j personnel he was even willing during or he was having an adjustment disorder or he was having a religious disorder so in that instance there are other diagnoses here that contradict schizophrenia and that short period of time is then followed with several more years in prison without indication that he was suffering from those symptoms so if it was even episodic there is a of people observing him for in five or six year period where they don't observe this except for that one brief moment when he initially goes into prison and we don't see those in the records from the state jail when he went a couple years later and we don't see those from when he was in harris county awaiting this particular trial let me ask you back on the question of the and mr stringer that's right  it seems concerning to me that the judge is the exact language that witherspoon and concern about you know the conscientious objector question how are we supposed to you know look past that  next have several responses to that your honor first i believe where you are obtaining the language that was found to be problematic and witherspoon is located within footnotes nine and twenty one nine and not gotten past the notion that somebody can be opposed to the death penalty be a conscientious objector have concerns about it and stand because they can put that aside and apply the law now you may still when he has a peremptory challenge on that person i get that but as far as a challenge for cause and that is the basic holding of witherspoon which i think still survives but the determination that those questions were inadequate does not survive those determinations were made in those two particular footnotes nine and twenty one which withheld were explicit or explicitly held that those were picked up and also the analysis of those sorry those questions being inadequate was under a standard that is rejected in wit in witherspoon the question would is would you always vote for life or would it affect your ability to judge guilt that's not the relevant question here the relevant question is whether the the question getting to substantial impairment can lead the trial judge with a definite impression that the individual could not faithfully impartially a the stringers and check the box on this question in the firm and i would consider all the penalties provided by law and the facts and circumstances of the particular case he did your honor and then he answer to the crowds large that he did have moral and conscientious opposition to imposition of the death penalty in an appropriate case and an appropriate case was explained by the trial judge in the panel all before dire that they had to answer those questions wherever they lead so even if we were to look at that particular part of the questionnaire that simply shows disagreement why when appropriate case be a case where you don't think you should get the death penalty because he had been abused as a child and he felt remorse and things like that i mean why isn't that the appropriate case and i can't vote for the death penalty where i feel like this guy had a terrible lives and so on so forth that's different from saying i can never you know i just refused to follow the court's instructions because we do allow jurors to consider mitigating circumstances that's a big huge part of the whole sentencing process  a death penalty case so absolutely that would be an appropriate case to not think the death penalty is right i would agree arguably i mean i'm not taking that position i'm just saying that's that's something that's a position a jury could take and not be violating  and here they were asked would you think of an appropriate sensually where you would impose the death penalty and these individuals said that they had moral or conscientious or religious opposition to doing that even in an appropriate you know i think cruz presents a good contrast to stringer because i think the appeal in cruise is somewhat questionable but the stringer over and over again checks boxes about how he does believe in capital punishment and this page that mysteriously got excluded is is replete with that capital punishment is absolutely justified griese i think capital punishment is necessary but i wish it were not in greece any person man or woman young or old who commits murder should pay with his own life you griese so if we're going to rely on the questionnaire we must have capital punishment for some crime agrees i mean that's if we're going to consider the questionnaire that's that's sounds like somebody who can certainly grant the death penalty were in an appropriate case to use your framing of that phrase i think that's absolutely or the capital punishment potential of the death penalty for smith i mean he doesn't want to hear about this lady and her daughter getting shot is i don't see how being uncomfortable about death because he says if this is a murder case well he doesn't know we know that you can't get the death penalty for anything other than murder but that wasn't true until you know spear lee recently and i would expect an ordinary person necessarily known that so that doesn't seem to be commenting on the death penalty th judge recognized that there are quote people are there are some people who quote believe in the death penalty but could never be a participant when that person is all to or ultimately could get the death penalty so there's a difference between an individual who is in support of the death penalty hypothetically or if somebody else were to make the decision about whether the individual were to get the death penalty but who they themselves could not actually impose it and i think the trial judge here made that appropriate distinction in fact in or t s this court found reasonable a state court decision where the individual was challenge and the c c a said that of another member who couldn't impose even if they hypothetically believed in the death penalty or somebody else believed in the death penalty or was making that vote could impose the death penalty so there's a distinction there about whether the individual could actually s and whether they have a hypothetical belief in the death penalty and i think the state trial judge here recognized that appropriately i'm sorry i said the daughter's name wrong it's christina which it is your being an appropriate juror is that you be able to faithfully and impartially apply the law if he says he cannot be sure then he can't even start at square one where he's applying the law let alone impartially or faithfully with respect to both of the but when i remember he says i can't be a juror because if i take off for weeks from work i won't get paid in and my family will start and and then you strike and then that person stays on the jury is that somebody who wasn't capable of being a jerk because they said they couldn't be it's the trial court's decision to find out or it's their role to determine whether the financial hardship or the psychological hardship would be so much that they couldn't pay attention to the evidence that they couldn't apply the law and here the trial judge thought that the non responsive answers that his demeanor non self strike coupled with the judge's determination is that that's it we're done with it we don't have any role in reviewing and you have a role in reviewing that your honor it's just that it's not a reasonable if  upholds that and so here again there are these five bases for matthew stringer his questionnaire i have mentioned his demeanor but this is particularly important with respect to him where the trial judge stated i noticed you the other day i noticed that you were paying attention in two other instances where the trial judge made that comment those jurors were found to be substantially impaired there were another two instances where they weren't they were accepted is as alternate jurors but that's a decision that should be left to the trial judge to make and the trial judge made that decision here in addition defense counsel's lack of rehabilitation is also something that a trial court could have considered defense counsel only not true indications that this individual was not substantially impaired and again with the appropriate case question the way that i have framed that the religious moral  conscientious objections to the imposition of the death penalty an appropriate case that itself is sufficient for a finding of substantial impairment here the trial judge before asking that question hearken back to the panel and vinegar by stating that obviously this is a very important case with a very serious punishment if you find the defendant guilty of capital murder and if you answer these questions in a particular way that i explain taking into context the the preface to the appropriate taste question in the fact that there was extensive discussion about what a legally appropriate case would be no fairer it is beyond it is not beyond fair minded debate as to what that question was getting at and the essence it was telling him what the range of punishment was in this case see there forty years flat or a death sentence and then asking him whether essentially he could pose impose a best sentence under the a political law and he said no but he had a moral and conscientious opposition to that cruise said that she had a religious and conscientious opposition to that and her questionnaire is dowdney substantial impairment i honestly don't know if i could sit in judgment of another person if it resulted ultimately in his death that is pretty much tantamount to the finding in whitely wheeler that the jurors confirmation that he was not absolutely certain or if that he could realistically consider the death penalty was a reasonable basis for finding that individual to be substantially impaired she also stated that she was opposed to capital punishment under any circumstances which is clearly under adams of the texas substantial  ce court i'd like to begin with the two concessions concession number one is that we are no longer pressing before this court the issue that it was an error for the court below to determine that the state court's ruling on juror cruz did not comply that it was not it was objectively on reasonable and so i'm no longer pressing the issue of  and i'm going to discuss judge i'm sorry i'm kick to discuss a juror cruz momentarily below to follow up on a point that judge haynes made dealing with the contrast between potential juror crews and potential juror stringer number two i am also going to concede before this court that we do not have any evidence that the juror or question errors were not before the trial court that they were not consulted i soon that judges read briefs that were filed so i'm not sure that it's analogous to the point the judge james was making but we don't have evidence that the jury questionnaires were not consulted and so i'm also conceding the relevance of those questionnaires and i'm going to return in particular to the potential george stringer's questionnaire because of the contrast in which stands with the jury questionnaire that was considered by this court in gomez so that's the second concession the third issue that i'd like to raise that is not included in the briefs and i apologize to the court for raising an issue that is not included in the briefs and obviously we are prepared to brief this issue with the court so request the only reason i'm raising our you raising it now because it didn't occur to me until friday judge comment and i believe that it goes to the question of whether this court ha subject matter jurisdiction over this appeal and i think that it's always appropriate to raise a question of subject matter jurisdiction and board even last friday you have until today to file a twenty eight jaylen or are something to learn it would be an argument that you're dropping two major issues and you're adding another one i don't think it's appropriate i'm not sure that it's i'm simply conceding that i'm no longer pressing the question of whether or potential juror cruz was not qualified and i think that it's appropriate for me to concede that in view of the government's brief and similarly i'm conceding that it's found a long time ago the government's reviewer coming to court today and doing this which is not fair to opposing counsel is not fair to the court because we're prepared to address what's presented to us and i'm very ok i understand i understand to commit i simply did not want to spend my time answering questions about the merits of those two issues and if the court had asked me questions the merits of those two issues i would have been disingenuous in arguing in support of those two issues which i am persuaded we are incorrect about why don't we have subject matter because judge haynes twenty two fifty three requires is jurisdictional i mean i was on the panel on jennings and i remember very clearly jennings received relief from the district court on point a yes and wanted to raise point b before us after the state appealed and we said no you can't do that you need to see a way and the supreme court said wrong and sent it back so i like to learn at least from cases where i'm at reversed because as i understand jennings judge haynes the party that seeks to see a way on a particular issue is permitted to defend the judgement on any issue that was presented to the district court even if it did not receive a a on that issue but the party seeking relief has to obtain a c e o way and in this case the party seeking relief is the government there is no c e o way that the government has sought of the government as it is in a way right that case is that the parties seeking relief obtain to see a way the other party can defend the judgement on any grounds and similarly the party that man i would have been in jennings the district court granted relief the state appealed and then the jennings wanted to race in new staff and we said you can't do that and that went up there and the supreme court never said whoa wait a minute this circuit never had jurisdiction i understand the issue is not presented and the issue that the to the government doesn't say as to the government it's very uncommon for the government to be in the position of an appellant this is i think only the second time that i've sat at the table in a death penalty case in th it's uncommon it's not an issue that i could spend a lot of time thinking about frankly it's a lot paul judge to comment that i didn't think about it sooner i will return now with the indulgence of the court to the question if we were to grieve what happened i think tha you joe and i think that you can treat the government's notice of appeal as a request  and i think that the c o a standard would be exactly the same as when an inmate to seeking a c e o way which is to say whether the district court's ruling in this case that the state court there i think that if the court wants to reach the merits that's what it has to do but i think that in order to create subject matter jurisdiction the court has to create the government's notice of appeal as a request for a c e o way and if we decide we should you think we have the authority to like to start with two issues or with who issues that mr ottaway start about started discussing and then he also raises several times in his brief he frequently defends the decision to get rid of any juror or potential jurors stringer in particular on the basis that the trial court is left with a definite impression it simply cannot be the case that if a trial court is left with a definite impression that that automatically insulates the decision to exclude a juror or simply because the trial court had that impression that would even rate the holding of wetherspoon it would be visceral the holding of adams to the trial could simply say i have the impression that this person is and capable of following the law and that would insulate the removal of that juror and that would have the effect of making witherspoon and adams completely meaningless  completely breezed past white which says where there's ambiguity i agree if there was just let's say stringer just never said anything else and they go i looked at him and he kept frowning every time the death penalty was made so i the judge decided he don't like the death penalty i'm striking something that off the wall ok in that situation of course i think that would be something that would be unreasonable to stink but here where there is ambiguity why isn't the white holding that in ambiguity we defer to what i've always called johnny or jane on the spot the judge who's sitting there looking you in the eye and sees which how you're acting the reason the reason pertaining to them simply knowing what what what stringer says repeatedly time and again over and over does not satisfy the witherspoon exclusion standard the colloquy between ringer and the court occur religious or conscience objection to the imposition of death in the appropriate capital murder case stringer says death bothers me a little bit makes me uncomfortable talking about it but other than that that is not a yes that is not a maybe that is not a sometimes the court then asks a question that lasts an entire page in the reporter's transcript at the end of which the court says obviously there are people who feel all types of ways but how do you feel you're telling me that you feel uncomfortable with death what does that mean mr stringer says anything about it pretty much he feels uncomfortable with death i feel uncomfortable with that i suspect that it's the case that many jurors feel uncomfortable with that that is not the relevant question for witherspoon it's not the relevant question under w relied on exclusively in this case the court says so let me ask you this question again and you have to say yes or no not i think maybe you know that kind of thing we need to know precisely yes you can or no you can't now i think that the only fair reading of that question and i'm about to return to what the trial court continues on in just a moment i think the only peter reading of that question yes you can or no you can't is could you return a sentence of death if this is a death penalty case and what mr springer's answer that his answer is yes now the reason that there is confusion i think is because the next part of the trial court's interjection here which comes after the question m trial court contest ok how do you feel do you have any objections any moral conscientious religious objections to the imposition of death penalty in an appropriate capital murder case and he says yes that means if there is some taste where i would not return a death  at thirty nine seventy two to thirty nine seventy four all right do you have any moral religious or conscience objection to the imposition of the death penalty in other words are you against the death penalty and she says yes i am the difference between the between what the court  that you were looking at to judge hands and the relevant questions and then we would think about how the answers to the questionnaire square with other decisions of this court that have addressed the question of whether a impaired question number one of mr stringer's questionnaire do you have any religious moral or ethical considerations that would prevent you from sitting in judgment of another person answer no question or two what are your feelings about the death penalty please explain  stringer's answer it's good that we have it and should be used on the worst of cross question number ninety four check one statement which best summarizes your general views about capital punishment he checks i am neither generally opposed nor generally in favor of capital punishment but now he even contradicts that i don't think he does judge you're going to you're going to he's in favor of it and then his answer to her because even if he misunderstood what he was saying yes to the first time around she follows up by saying ok what is it religious moral or conscientious and then he says so if he had been confused that maybe he was answering yes to can you assess the death penalty he would at that point then go away and that women now he instead said more on conscientious which is inconsistent with is  ra ra for the death penalty in answer to question ninety six i don't i don't think that that is a fair reading of his answer judge haynes in view of all of that in view of the totality of evidence that we have in this case his objection to a death penalty in a particularly is moral and religious so to use your example if we had a sixteen year old kid he would object to the imposition of the death penalty in that in that in that case on both moral and religious grounds if we had somebody who's intellectually disabled he might object to that but the it could be read since it's more natural ring in the question put to the judge family put to him was do you have any objections any more conscientious or religious objections to the imposition of the death penalty in an appropriate case meaning most people would think that the death penalty would be appropriate in this in a capital murder case and he says yes even even when it's appropriate i have as you all know what's happening here is that the judge is asking questions and mr stringer is answering and the judge's questions are pretty long they're not yes or no the way he asks judge cruz he has these long wind ups and lots of subordinate clauses and i simply think that in view of the nature of the questions it's not remotely plausible to read stringer's answer as reflecting substantial impairment there are there are two cases as best as i can find that addressed the question of what substantial impairment means one of them is from this court one of them is a third circuit case the third circuit case is called martini against hendrix it's three forty eight f thirty three sixty and the case is not particularly useful to this court given the facts in this case other than that the third circuit in that case i think makes a useful distinction between impairment and substantial impairment and what the government is arguing in this case is that the fact that potential juror stringer is bothered by death that that represents a substantial impairment and there's no what's the word whatsoever for the proposition that being bothered by death is a substantial impairment of the contrary well i think only by negative implication judge change the other case that we've located that is cited in our our  our brief at page thirty seven is the decision in gomez and what this court does in gomes at five twenty nine f third three twenty two is the page that the case starts on and i can't immediately find the jump site in front of me but the court goes through this questionnaire because the juror in gomez is somebody named campos and the court goes through the questionnaire and points out camp his answer so if we look back at stringers questionnaire question number ninety six eight is capital punishment has never been effective in preventing crime stringer says i disagree the just say judge owen that if you look at the answers that juror string or potential juror or stringer gives to question ninety six on the agree disagree i simply resist the characterization that he's all over the map he's not all over the map at all this is somebody who unequivocally unquestionably says that he could return a sentence of death is it possible as judge change is suggesting that in some case he's against it absolutely but that's not the test the test is whether he is substantially impaired were substantially impaired means he cannot follow the court's instructions and what the court's instructions in this case are going to be given that it's a death penalty case or do you find that the defendant is a future danger and there is no reason to think that he can't answer that question i'm reasonable for the trial court to have found that he is all over the map i think i can see again like if this were a direct appeal you know i'm in a different like i've got a different hat on the hat i have on here is one that really constricts my head and so i'm having to look like did the trial court act unreasonably to sum up all the standards that we deal with under and you know it does seem like he's giving some inconsistent answers his verbal answer and again we don't have the benefit of looking him in the eye and while i didn't do capital cases as a trial judge i did a lot of or diaries as a trial judge and i remember some jurors were you know looking nice and they on answering and some of them were sweaty and you know seem to be a little bit not totally  forthcoming with us and so on and that's something i have to gauge as a trial judge sitting there looking out and i could gauge that incorrectly maybe they're just sweating people you know maybe the person is just a good liar or whatever and i would say most  i did not think were lying to me to be to be fair to the jurors that appeared in my court but whatever the situation there were people that were more uncomfortable or less uncomfortable answering questions and i had to filter all of that and that really wasn't for some  court later to go on because they weren't there and i would just say two things about that thing about one is that there has to be something in the record besides the qual judge impression or took her to the issue that i discussed earlier entirely of this rates whether it simply can't be the case that it is adequate to strike a juror just because the just because the trial court says i've got some problems with this for there has to be something else and at that point i mean what if the end of this is a little bit off talking and i remember doing of order as a lawyer once and there was a juror who just spent the entire time yawning every time i talk and then smiled real big when my opponent talk ok there's no record of that and so if there had been some sort of bass in challenge or something like that i don't even remember the the situation with that juror but i mean that was the basis for my and i wouldn't have any record of th answer if there had been i don't again i'm not saying they could have made a basket and i just i'm saying this is sort of thing that happens in real time any lawyer would would strike and jurors yawning at them and smiling at their opponent but you have a much of a record of that so while i agree that just the judge the judge saying i just don't think mr sure can be fair is probably not good enough that coupled with the other things we have here which is the seeming inconsistency between his answer to the question about the conscientious objection and his somewhat gung ho support of the death penalty in the questionnaire that is a supplement that we have to give some credence right i don't think that there is any aspect of mr stringer's demeanor that is reflected in the record other than the trial court saying i noticed you for earlier doesn't say what about stringer was notice just says i noticed you and i mean who's supposed to draw that out i realize that on direct appeal the state would have had the burden but here we are you know three three reviews removed from that and it's now your burden to show that he wasn't you know frowning or i mean there are definitely jurors who sit there in the on the board our panel and are reacting hugely not sang in anger frowning or they're jumping record the supreme court in eutectic it's brown requires that the record itself that the record itself show substantial impairment the burden is on the government at the trial to demonstrate that substantial impairment when this case goes to the court of criminal appeals on direct review the corporate appeal says the it is clear that string personal feelings against capital punishment would prevent or substantially impair the performance of his duties as a drawer that's the court of criminal appeal spends an entire day of one sentence on the merits of the witherspoon challenge for the removal of stringer the question before the court below was whether this finding given the record in this case is objectively unreasonable saying we can't even look at the trial judge i know that you didn't write gillers against benoit judge james but you were on the panel in dealers against the on the way in which i believe is the first case where this court interprets the supreme court's decision in wilson against sellers making and the answer is that the question of whether the decision to remove stringer is objectively unreasonable is determined by looking to the decision of the court of criminal appeals and what the court of criminal appeals does in this case is say he was against the death penalty and that decision given the record in this case is objectively unreasonable it simply does not show substantial impairment and even even if i were to concede something about stringer and i'm not inclined to concede anything about him because i think that the questionnaire is unambiguous and that the only reason that it's possible for the government to make hay out of his answer to the trial court's questions to him during individualized because those questions are so difficult to follow if i were going to concede anything i would concede that he is impaired in a particularly case but that he has not substantially impaired with respect to his ability ever to return a sentence death and that is what the government's burden is in order to satisfy the witherspoon exclude ability of a potential juror or i don't have a lot of time left but i'd like to turn in my remaining time to the question of mr smith's substantial mental illness and i would just like to make i think two principal points the first is in response to the government's suggest in this case that we do not provide a definition of severe mental illness that is not in fact true but note twenty one of our petition that was before the court below provides the definition of substantial mental illness that we argue we did what clearly established law did texas courts fail to  i think that the question of whether somebody who has severe mental illness is categorically excluded from a death sentence is now and said you cannot execute someone when they're substantially mentally ill it hasn't said that but we believe that that conclusion we can't draw that conclusion is that much is clear to us i think we can see that this court cannot draw that conclusion on hevia since i the hints fourth this is the established law and i think judge owen that if if this panel addresses the severe mental illness question in that way then it will be answering that question in a way that is different from the way that the court below ensure that all that the court below said was that the federal district court and i understand i understand is your take on madison versus alabama what if any impact in that opinion if it came out tomorrow have assuming they stick to the issue presented in that case how could it impact this case if at all i think it is a question of how narrowly or broadly they right judge james if they write very narrowly that somebody is if they make it if they if they write narrowly and they make a case it's very much like ford against wainwright it's just another little subset of forty games playing right and all that's in permissible is to carry out the execution then it's of course quite possible that during the duration on death row the inmate would once again acquire an awareness and would then again it would would not be it would not be currently on the other hand if they said broadly if then what is your response to the exchange we had with mr ottaway about whether that would apply you know under shoop or whether it would be more of a categorical denial of execution under the not in eligible for all time committee that's why it goes to the question judge on one of whether the supreme court addresses the question broadly or narrowly if it's addressing the question broadly then that would hold that somebody who has this form of severe mental illness at some point in the proceeding is ineligible for execution ever well i recognize the point that you are making such claims about how some mental illness is treatable so that somebody who perhaps unlocks some cognitive awareness at some point in time can then acquire that cognitive awareness later on and i'm not prepared to say how that would of that mr smith or smith what about the fact that the state court found the opposite that he does not have schizophrenia i don't think every potential mental illness is going to keep you i don't think they're going to go that broad if but if they were to say something severe psycho psychosis such as schizophrenia the court addressing the subject matter argument that has been raised for the first time at oral argument twenty two fifty one which controls the c e o way is a placebo only to applications it is not approachable to the government the issues that could potentially sustain the grant of relief here i think not persuasive jennings that the supreme court found jurisdiction to hear cases in general but also specifically given that the state appealed without a c away and getting that jennings then could be heard on everything else to me to just assume the supreme court overlooked this john ormus of the subject matter jurisdiction i think i agree sometimes you could miss a question because it was a raise that just seems to me to to be inconsistent with jennings i agree judge james i think that this particular case is on all fours with chess there is nothing that prevents this court from bringing the other all that is the standard imposed by the supreme court and wit and how do you intersect the argument of under wilson at sec we're limited to the ruling of the t c c a with this notion of you know that there's a lot of deference to the trial court's conclusions in these cases and so forth how do we glom all that together because to be fair to the t c c a they had about ten jurors who were challenged on this ground and they're kind of go on point by point i don't know that each time they have to say and we bless the trial judge i mean i think if we're going to overrule the trial judge they might get into kind of limiting the trial judge but i think isn't it sort of known that you do tend to deferred to johnny or jane on the spot for things that involve credibility and so forth and that's kind of a fundamental premise of appellate law though not always followed by a felon cour saying that they defer to demeanor calls is itself a finding by the c c a that they will do for you not to say about each one of these ten or hammer many jurors there were that were challenges i guess what i'm saying is you know it is a little bit succinct they say about stringer but you have to read in the context if they just waded through half a dozen other people at that point break your honor in fact i would i would point you to white the wheeler where the underlying kentucky state court decision doesn't even talk about demeanor it just says that we find no abuse of discretion with respect to all of the individuals who they are appealing for a white for witherspoon air so there's no mention of demeanor there yet in white v and again with respect to the definite impression the argument about has somehow overruled witherspoon the supreme court in which specifically noted that they're asked to be deference to the trial court and in so holding we in no way denigrate the importance of an impartial juror we reiterate what this court stressed in tennessee united states the trial court has a serious duty to determine the question of actual bias and a broad discretion in its rulings on challenges therefore and exercising its discretion the trial court must be zealous to protect the rights of an accuse that happened here and that is not an overruling of witherspoon it's a recognition of the appropriate place for a trial judge to make these types of difficult calls and that was made here mere disagreement with that does not overcome an initial layer of deference on direct appeal and it certainly doesn't overcome the double deference that is according to state court decision under twenty two fifty four d with respect to my opposing counsel's argument regarding how to interpret the colloquy between the trial court and matthew stringer in order for this court to grant relief it would have to find that no fair minded jurist could possibly interpret it in the way that the government has proposed here today and that it takes into context the fact that it's asking about an appropriate capital murder case which was defined would have to be almost like as a matter of law that's what this means or something like that rather than just one could construe it i it's possible that mr stringer misunderstood the question but that might answer a particular question is not how we review these cases their review based on whether the record supports the possible interpretation of that answer and giving deference to the trial court and determin exactly how that question has been answered and here the trial judge specifically noted that it was difficult to service a jury and that this was a difficult case because there was death and volved but the trial judge appropriately noted that again we don't want you as a juror in this case if you don't want anything to do with death because obviously you would have to you'd have to do that both in guilt innocence in this case and you would have to do it in as punishment whether not even really a witherspoon issue you know if you just can't sit through a murder case because listening to death is just too much for him even if it was not a death penalty case that would be a problem is really your argument it would be a problem your honor and again in  the supreme court language is whether they can apply the law but if they can't even get to applying the law that's the problem that's where the trial work can determine that they couldn't sit as a juror and i would ask the court to please reverse the lower court's grant sentencing relief and otherwise enter judgment in the director's