the judge gave comes back and maybe the judge didn't but i have no idea from the transcript so i just again mention with some pretty basic rules here in the ninth circuit if you are trying to the actual transcript we need to have opinion which to resolve the double sided problem and that there was a jury instruction which the people the respondent are relying on we were really pointing to the absence of another jury instruction we're not really relying on the one that was given that it any rate the that one was forwarded to the court also apparently by someone i had three conversations altogether with the court staff about today ok i would like to focus on the second argument in our brief which has to do with the exclusion of testimony of an examining psychologist which was offered by the defense t demonstrate that the defendant was mentally retarded in the absence of expert testimony on his on the issue of mental retardation the jury was left with insufficient and insufficient basis to conclude that he was just had this expert examined the client right at the time of the trial or something like that to bring it up today the expert examined the defendant two and a half years prior to meet the pendent a forensic psychologist who does the evaluation for the purpose of the fending the crime that has been committed the doctor is well paid the doctor knows what we want him to say he usually to what we want him to say and the prosecution predictably says to the jury well this evidence was basically prepared for the purpose of this trial wouldn't be a lot better if we had a doctor who d examined the defendant a couple of years ago maybe before any of this came up then wouldn't we have a much better idea that we were getting the truth isn't that better evidence and i hear that that's what i hear i sponsored to the case that i more typically prison and so now in a comparatively rare case we actually have a doctor that examined the defendant when he wasn't charged with benefits don't get evaluated every year or every two years or every three years they get evaluated and they may remain on the program their whole life without being reevaluated the reason is because these conditions are chronic and stable and unchanging now there may be a round of magical thinking where these things get better but in fact they don't and it's unreasonable to speculate that they did now is for the point about social cues that maybe he was trained remember the prosecution did not complain about late notice hold as a matter of l adopted socially and he better all i have a new with a reasonable for the court in the trial court to say that's not relevant because what i'm interested in was what was his condition in one thousand nine eleven there's no reason for a trial court to say that's your position now all i have to show is that it's relevant i don't have to show that it's the gospel all i have to show is that this jury should have known this no you have to show is that the trial court california said when it said this is irrelevant it was making an unreasonable application of federal law as found by the united states supreme court and its excluding it was excluding whether the defendant might have gotten training on social cues and other words you enter a room and everybody standing in a line so you stand in a line you're out with a girl and to indicate a lack of consent now the testimony about deanna was that she doesn't speak for herself she never voices an objection to doing anything and this is a  quote by the examining psychologist she is not able to conceptualize to provide consent the idea of consent doesn't exist for her unquote deanna is compliant her desires quote don't seem to enter into the picture unquote so this is the description we are given of deanna she doesn't give social cues the judge was trying to determine whether the defendant might have an enhanced ability to pick up on social cues that this was not what she was capable of communicating she to in order to determine her ability to consent in the situation the defendants had to reason a little bit more about the context what was she doing out on the street at night who was she was a prostitute where did she come from they were supposed to this guilt the terminations to know whether this defendant could reason through forget about the social cues for a moment how was he dressed where were they where was where did she come from what did she do well let me say number one that i think i would be hard pressed to find in california or anywhere in the united states a case in which the defense offered an expert psychologist to examine the defendant prior to the a fans and that that testimony was excluded so i don't think i'm going to find many of those cases but i do have a number of supreme court cases which come up in the context of either appointed psychologists or psychiatrists or ineffective assistance of counsel to pursue the appointment and there's about five or six of those that are testimony was i'm i have to rely on the brief because i don't think i have it in that excerpt of the record in terms of the actual testimony there were hundreds of pages of testimony about that's how i know i we know he he was in hospital right up before the crime that he was hearing voices that he had various mental problems and that sort of thing and so we know that he said some of that  and the believe me the district attorney did not take any of this for granted she actually told the jury that he was normal she told them that he was normal or th ahead of the jury that he had lived with mentally retarded individuals and that he thought she was like some of those individuals yes so you know what i'm trying to get at to try to put to the extent it's the essence of your defense and goes to an actual element of the crime true you know then then it kind of transforms itself to somewhere between an evidentiary and something else too and trying to figure it out whether in fact they had enough other evidence to make a judgment about his abilities and about her situation all they had was the defendant's testimony and he he testimony there was there was no proof that he was retarded there was no proof that he did he was now some regional center client which is a a big deal verbal things the thing about d n a is that she doesn't do any of that she she's cool yes since she goes along with the whatever someone else was doing and that was the people's case that was impression you know that there was evidence that he was retarded but there wasn't she was just i don't know arguing against a straw man residence that he had mental problems you could believe or not believe them but that there was definitely evidence in the record correct well ok he he said he had lived in a home for the retarded he was asked whether he had been diagnosed as retarded guess what happened objection hearsay sustained so that we don't know he didn't he wasn't even allowed to testify that he'd been diagnosed as retarded so what was he psychotic was he retarded was he development disabled was the organic brain did damage not do you know know they didn't know whether he was just marginal or whether the extent of his of his retardation that's what they had to know in any information about social cues would not have helped the evident the argument then would have been what difference does that make she didn't give off any social cues that was that was truly irrelevant but the evidence that he was retarded that he wasn't able to take in the whole situation evaluate how she was dressed the time of day what was she doing there what did she do for a living where did she live etc all of that information that a person of normal mental competence would put into the stack before they had sex with somebody that his ability to assess that and process that was impaired anybody that was told that he retarded would know that the irish injury to that connection i recent wasn't even our target so the prejudice i think is manifest on the record thank you thank you so forth and if the court has some questions i'd be happy to clarify what went on before we were told that staff requested friends with and instructions i was under the impression at the time and i explained in my throat you know that i thought perhaps it was just my copy of the excerpts of record that suffered from that defect and if that if that was the case i had no objection because i did have a copy of the record that i could work with but that if it was a defect was also in your copy i have no objection to mr been no filing a supplemental want to include then i got a phone call it this is what all because she asked for the jury instructions as well and so i got the information that she said she wanted i passed along to my secretary and my secretary what was  requested then later apparently the clerk called somebody else in my office my supervisor who was unaware of what was going on with this and asked for the same records and my supervisor said i don't think this is our burden to provide this stuff i think it's the burden of the power he didn't know about these are conversations and what had gone on now what do what turned out to be the case was that the instructions that i believe  me had asked for and that we had provided weren't didn't turn out to be what she actually did want so what i did a document was i went in track down our state record which took some time these documents are in storage and and  that so called diminish actuality evidence of diminished actuality can be used in certain contexts when defendants intent is an issue and arguably a case like this which involves a knowledge provided as to what dr williamson sa in regards to what in regards to what you just say to to me where i didn't do we have a transcript of dr williams's saying i could not offer an opinion as to his capacity at the time of the crime and where is the reporters trying to get so i can see it and be satisfied with the state court did not make an unreasonable termination of fact i i did not include diet and exercise record because i don't believe there was any allegation that the state actor william self specifically stated that she would not be able to give an opinion as to whether or not the future has such mental awareness or capacity at the time of the crime and you're referring back to the legal consen you know we don't have to measure parasitic that we have diminished actuality and what we have in this case had to do with the ability to recognize the social cues when that's your argument but now the defendant could have done this he didn't do it we're not arguing and i see a claim here we're arguing whether the the whether the exclusion of this specific evidence amounted it was so egregious as to to didn't den court's concerns here and if there was any confusion regarding submitting these records on the part of anybody in my office i do apologize i know i'm almost out of time can i have you have a minute for me thank you are here time here i will offer to the court a supplemental excerpt of record i can include dr williamson's have an opinion about should know anything about the fans didn't have an opinion as to that why would her testimony be relevant if that this jury had to know that this person was retarded you know there was a retarded is not enough if that that's like saying she had to know that the person had some disease so it was not normal the testimony has to be specifically to the point that at the time of the commission of the crime not that there was diminished capacity just as much by by popular referendum in california that we live in it but that he wasn't able to appreciate the nature and quality but if this were a case in which the defendant or someone else was seen running out of the store and there was a doctor who could testify that he was paralyzed in a wheelchair two years earlier when did you examine him at the time that he was paralyzed in a wheelchair two years before so i don't know how or what his condition was but usually when you're paralyzed it's permanent i think that would be relevant and i think this was well thank