trial court in this case st found powell incompetent after he underwent court ordered treatment the trial court then found him competent based in large part on a stipulation from defense counsel months later physicians that first said we need to rule out and then diagnose your client asthma lingering and the judge had many many opportunities to observe your client  record may have said eight specific times and there are to me it seems like there's overwhelming evidence in the records of behavior entirely consistent with  why is the fact that the jail reached out to the judge to say that your client wasn't suffering mental problems from the lithium y a y is that somehow mean that the judge did something court could decide whether to continue with trial it felt like it needed more information and where we were earlier than have it out there counsel i may be confused here where in the records does that indicate that the trial or reached out  case says that didn't want to judges dealing with the alleged competence of a winger or that a judge can't rely on prior reports and his own experiences to decide  as a matter of fact based on everything that's b s or that the defendant is simply trying to delay trial like on the day he's talking about the letter from dr bishop and your  client is talking about it wants his mommy there to take him to the i hop and he's angry and he hasn't had anything to eat in ten years and the court says basically this is just the same acting out w proposition in pete the court relied on his observations of demeanor to say they thought that the i'm defendant was competent and the supreme court said that in the face of other objective indications of incompetence those demeanor based observation laughed about when somebody apparently had used before what's the objective evidence here of incompetence so even setting aside callous behavior i think there are two really him written objective pieces of evidence here the st i was the quizzical about competence and she eventually stipulated that powell had been competent in early two thousand and eight but when defense counsel alerts the court that there are changes here supreme objective evidence is both the amount and type of medication that pal was on at the time of trial and to be undisputed changes in that medication on the eve of trial so the information that the trial court had w lithium had been discontinued the trial kryten knew that there was some confusion as to date the deeper that it happened but that it was quite recent before trial that he had suffered physical side effects as a result of the amount of lithium that he was taking  and that he had started on a new medication limit told that he had never taken before so there's changes the medication and then the rd objective indication of a competence here is that the prior competency report  that final competency report did not to hate knows powell with bipolar disorder or a psychotic disorder in fact that report didn't diagnosed him with any major mental illness but the trial knew at the time of trial that paul had been receiving lithium for a bipolar disorder and he also knew that power was on an anti psychotic suggesting that jail treatment staff had diagnosed hospital for treatment and there was a forcible medication order it is not the exact same as an involuntary psychiatric hold which occurred in mass while he was subject to a court order medication order and court ordered treatment  another i think interesting thing is in maxwell the trial counsel did not request a new competency hearing whereas here trial counsel repeatedly requested a new competency hearing so that's a piece of evidence of the competen honor oh yes yes your honor i'm sorry yes that's correct one before the restart if you think including getting contents one was undetermined and then one after after restoring it she may conclude that he was competent respect to your circuit by my home circuit that we can't look to circuit expressions of principle to meet the standard that we have to have a supreme court case that is it is is relatively well in point and isn't one of the big differences with a which of course is five years old is that there there was no quite on point and makes some very clear points to a bigger point here particularly about the critical nature of councils representations and impressions of defendants ability to determination is made which is right out of rope it says that the court determines competency based on what is then no one to the court at that time so when looking at all that some of the post point raised by the defense you referred to and connection when so many court would not have known well actually the post stuff really doesn't  do much for the defendant's position what he put in post in connection with this rule thirty two were a lot of articles about the potential side effects of lithium and something the other drugs that he was taking i each diagnosis and so that does color somewhat what the trial court is looking at but the true court also has known this defendant for over a year and so he has a had the opportunity to get that he's incompetent the two are really separate inquiries one can be both mentally ill and competent to understand the proceedings into a system the defense says and that was the whole part point of the restoration to competency was to get him under the correct medications to get him to be able to assist in his own defense the change in medication did cause some concern for the trial judge when vincent went in on the twenty eight for the st day of trial the judge can see that he was visibly bloated and visit physically uncomfortable and when he had declared a mistrial because of what had happened in the change of medications before proceeding again on august th the judge did reach out to the jail to make sure that that change was not going to impair their going forward and was assured by dr dr bishop from the pima county jail that he was at that point stabilized that the lithium was out of my system about that point in time and that he could go forward with trial and that if you chose to misbehave at that point in time than he was can defense counsel did not object to the x party nature of that nor were they did she ask to cross examined continuing nothing was new in the world i mean maybe he was doing some acting out front of her that he had done before but there were always these inconsistency is when he was dealing with the professionals invest his test scores done by dr a lender some of the doctors at ash as well as dr johnston showed a distinction between his actual condition and what he was trying to portray during counselor that's the actual definition in part of my anger and the intentional production of false or grossly exaggerated physical or psychological problems right that's correct your honor and the mask as you noted earlier the mask of protection had dealt with it had came come to be in may of two thousand and eight so by may of two thousand and nine when it shows up again it's nothing new he'd been done that before he didn't end up in ash it was one of his consistent behaviors as was the self the self harm which dr johnson at least one other provider i can't recall  put your honor really there it comes down to really good evaluation of his demeanor and his credibility and in those cases  nd guessing the nd guessers which is really troublesome when you're dealing with someone's mental health and being away from the people who are hands on i understand counsel's concerns  trial he checked every morning and gave politicians to come in and in public repeatedly refused not violently not irrationally he just would say don't thank you i'm not coming what kills the scale is the consistency in the mental health professionals reports with a consistent series of what's it been observed by the trial court judge and of powell and his behaviors and demeanor so you have a consistent i don't want to use spiel that some some symptoms that show we can consistently throughout this whole proceeding they don't elevate they don't get they're just the same and they've all been attributed to this malign during an exaggeration that the only professionals except for doctrines on the st time ha defendant was exhibiting are completely different our new inclined not consistent with prior diagnoses that has to give a judge more pause but your view is that's not what happened here that's correct your honor it was just kind of this is the same symptoms an accelerating up again and again and whether they lost my train of thought there excuse me your hono over the course of several months showed that he had that that he was trying to game the system which is also what showed up in that the phone calls that dr joseph referenced early on before the  so he was trying it was pretty clear that he was from the onset trying to game the system here and was going to put on a show put on a show seems a little crass but trying to do what he can to avoid symptoms of physical discomfort that needed to be addressed by the trial court judge and were appropriately addressed by the court that's the libyans right yes that's correct your honor it's not really clear exactly what day that that was ceased but by the time he went to trial on august th and certainly by the time of trial in two thousand and ten you know dr bishop had you were sure that the trial judge that the new medication had kicked in that he was much better physically and emotionally and that he chose to behave at that point in time he chose to misbehave she concedes that if the trial court had a bona fide doubt as to competence it was required to hold a competency hearing i'm not sure how you explain the trial court's decision to reach out to the jail not once but twice to find out more information about the medications the powers receiving when those had been changed and specifically leave the effect that that could have had as to his competence i don't know how you explain that decision if it's not a desire to get more information about sure that i'm looking everywhere i should i think the case law is clear that if a judge feels that they need more information to be certain about that they need to hold a new competency hearing it's black and white there's no discretion that is the supreme court  competence and again lithium was for bipolar disorder the judge said that but the final competency your report which the judge was relying on said that politics not suffer from bipolar disorders so again to suggest not only a change in medication but a change in diagnos aware of the time and i want to point out a couple things about what i'm opposing counsel said about consistency both of the reports were consistent and the palace behavior was consistent neither of those things is true the one consistent thing about the evaluat reports here is that they found pot powell hard to evaluate and and the that some of the later said his self harm was far beyond that would be normally happening with a mullingar or and so there really was inconsistency between the reports there also wasn't consistency in his behavior this was the st time he had had to be restrained in court it was the st time he refused to participate in court proceedings and prior to the competently determination he had never expressed that even if it's five minutes on wednesday if on thursday the dow has disappeared you still should have heard it airing on wednesday i think the case law supports that interim interpretation of craft and i think the