all right our fourth case for this morning is denny anderson against united states me a please the court i'm josh parker counsel for petitioner appellant any ray anderson and the time he pled guilty jenny randerson suffered from a number of severe psychiatric disorders including chronic schizophrenia and bipolar disorder for which he had been prescribed multiple coton psychotropic medications including a large dosage up an anti psychotic so what that specifically pardon saying the port or the suppose of misbehavior in the plea agreement we hearing seems minimal i saw plenty of non responsive answers from time to time for lots of different reasons though that's pretty good if i recall correctly was in response to a question about understanding that you give up the right to hold public office and serve on a jury and for a lot of defendants that's a joke so i crank lee didn't draw a whole lot away from that about his condition in that hearing sure even if you don't draw a lot of weight from that the critical thing to draw away from is the fact that he did as a trial counsel informs the court he needed to be on the correct medications in order to focus in his consultations with her and in order to be competent effectively and the government does not dispute that at sentencing trial both he and mr anderson said he did not receive his medications that morning and trial counsel inform the district court that every time he changed cell block even as he did not receive his medications for a period of time and she implied that was a regular occurrence over the course of her representations from him and the reason that this judge or ignore goes back to the change of plea hearing is the sentencing hearing was only two months a little more than two months after the change of police hearing and at that point the district court would  duty to hold a retrospective competency evaluation to assess hey you know what if the defendant was not receiving his medications throughout we might have to reinvestigate whether at the change of plea hearing the defendant was competent as well you know  you let me ask you this question i'm now at the change of plea hearing and at the change of plea hearing the court is doing what what the judge is supposed to do asking whether he's on drugs he says yes y ou know i am are you under medication now yes he says and then there's this exchange where the court asks him whether it's affecting his ability to understand and he's a little equivocal he says not that i know of i mean as good as i can yeah he's saying these things but i want to know whether you're making the argument that somebody with a record of psychological disturbances as serious as his record is whether the court sh regard such a person is competent to answer those questions even without further expert exploration without a competency hearing right and you know somebody who's grandiose might think that he's completely able to answer questions he may not be right to response does to that first in homes this court made the point that you know someone who's not competent might mean not be competent to attest to his own competence so yes we certainly i think that point but the second point is a specific point about the nature of chronic schizophrenia which is this court explained in brown defendants might have certain periods of lucidity but then that other moments be suffering from delusions or paranoia as this court said in the home someone might you know  perfectly normal until you ask about what they're really thinking so for that reason when you have someone with chronic schizophrenia there needs to be more investigation and this kind of goes back to the roof nurse question me be there wouldn't have needed to be a competency hearing if for example there was a very recent psychiatric assessment where base of the judge was where they said mr anderson was competent but there was no such conclusion and this court said in brown that when you have a defendant with chronic schizophrenia recent psychiatric assessments are essential here the district court has no psychiatric or medical assessments before it and the record is a clear on the extent to which trial counsel had such symptoms would have been noticeable by his counsel and or judge pratt if they actually occurred during one of the hearings so on wondering why adam at this stage because it was delayed there was no report there was no formal report in the stage i'm according to this court's case a copy of that his verified statement alone suffices but besides that this again goes to the nature chronic schizophrenia which is a defendant might appear perfectly normal even though what he's really thinking is thinking in the disordered way and at this stage given the fact that his competence depended upon taking his medications district court comments that the sentence which was one hundred eighty months as i remember was in fact the absolute lowest sentence he could have received so what's what's going to get out get out of all of this your honor  first said he has the right to be sentenced while he is competent it is an important due process right because he would be an absolute so he wants to vindicate that right but also that it's no guarantee that years later that you know that know it's not just the fact that these skits a frantic it's the fact that he's gets a frantic and on particularly potent medications were you saying that he could not enter a valid plea in light of all the fact this is an individualized got counsel who knows he's mentally ill and who's using that and it to his benefit in mitigation correct correct and who are observing his behavior in the plea hearing there's no indication as i see that he didn't get his drugs his medications for the plea hearing is there it's unclear from the record is there any indication he did not in the record i would say his and usual behavior which i realize you're hon not and why should we be doing this litigation on the theory about what might be on those records your honor at this point it would be inappropriate to bring up facts that you know were not included with the twenty may please the court brian writes for the government all the parties to this proceeding that were in the courtroom with mr anderson believe that he was competent the record readily supports that determination looking at the test  factor into that assessment the trial the district court judge blows right through this is though the answers are all what she usually hears you know no i'm not on any medication nothing's wrong with me but instead he reports you know she gives the standard question appropriately any mental illness addictions he says yes i'm on psychotropic drugs for paranoid schizophrenia and a few other things she never answered she never asks what else she never asks you know which medication she never she doesn't probe it at all and it's troubling to me that she just blasts through this and then takes his word for it that he's competent when that may or may not be the case depending on the illnesses and depending on the drugs i think first the standard isn't whether there's a mental illness or medication i think and the second point there i think it's very important that mr anderson's and i didn't say that was the standard i said evidence that is relevant to the judge's assessment as to whether an evidentiary hearing is necessary surely includes the nature of the alleged mental illnesses if he came in and said you know i had a bad cold last night so i took some benadryl she's not going to worry about it right because even though benadryl make sure little goofy sometimes you know most people can absorb that if she says i'm on some of the most powerful psychotropic drugs drugs that exist further inquiry is sensible and she doesn't she it's like she's going through the motions she just says does your medication affect your ability and course how does he know he doesn't know he's not a reliable reporter but i  think the person best position to know is this attorney and minister's answer anderson's attorney who had looked at his medical records believed incompetent i think if we could step back and look at both deeply and the sentencing hearing that shows that he met the test he was on his medication she qualifies that at the sentencing hearing she says yes he's on his medication hasn't recently changed cellblocks is fine but he's goofy if you know he's not trying to do this yet she says that his focus is not not as good on the medication but it's but i mean it's what you can't really effectively work with him when he's not on this medication i'm not sure that's what he said that being said it's fair to say that counsel was very aware of both the mental illness and the issue competence yes your honor she was aware of both of these things and she concluded that in dealing with him she was able to consult with them and again this is shown they work together make valid objections in fact two of the objections to mr anderson's criminal history are sustained that couldn't have happened if there wasn't an effective relationship between the two so that shows a working relationship between the two so that meets the competence on that second rational understanding of the proceedings mr anderson showed that he was able to explain this crime he rationalize and try to diminish as a couple belittling this i say swear thing about well he was entitled to steal because they fired him well that was that was a different crime but yes i think it's that's not unusual i don't really think it's usual to see defendants come up with a brother in effect of rationalizations for their criminal behavior but but here for this crime just caught me is a little beyond in a protective stand it would but here he was able to say i'm not as culpable because i did not shoot at the person i shot in the air so that shows an understanding of this crime then he was able to explain his regret then in the later on he was able to understand or it display his understanding of a s of his are from palpably incredible your honor i think as judge robert pointed out in the opening portion this argument some of these things would have been readily apparent and some of the things the alibi alleges like running around making room you were feeling confused right now i would know that i think confusion yes that might that might be in a different ballpark but a lot of that you know that's his allegation but a lot of his allegations i think would almost certainly have been apparent to the parties they would have been i think certainly shown up in the record at some point and as far as the away i think whether that is somewhat disconcerting or not as quiet as this court was pointing out the opening portion that occurred at the sentencing a not guilty plea there's no indication that the guilty plea he wasn't receiving his medication but he's gone completely crazy between set between guilty plea and sentencing drooling while he's in there in the sentencing hearing surely you wouldn't have the sentencing hearing that you would hospitalized him you would see if some doctor could get him back up to some reasonable level of competence and so we don't sentence people if they aren't aware of what's happening but certainly or even if the hundred eighteen months was a good deal for it and if at that scenario rose i think certainly the district court judge would be compelled to hold a hearing but that didn't happen here in fact the sentencing hearing itself the record establishes his competency as i already discussed the two prongs i think the sentencing hearing really is where is the best evidence of his competency so maybe he didn't get the medication but there's no other and he was very vocal in a sentencing hearing so i if that was the only thing he had said innocence and hearing i think it be a lot more discreet disconcerting and retrospect but considering his engagement otherwise in the sentencing hearing i think that the district court was correct in feeling satisfied in this cou didn't take into consideration i think consideration sure but it should be read in context i don't think one potentially bizarre statement we have that should be necessary to take a competency hearing especially again when this is a defendant able to communicate and develop an effective defense with his attorney which again is the first prong of the competency hearing and there's really it there's been no threat in the record to show that he didn't understand the proceedings against him either the crime he was charged with the  the government disagree that there was a rush i think the record establishes both prongs the competency fully do you know anything about this business about him having to pay for his medications i'm i apologize i do not your honor he was in marion county state court jail at that point i'm not entirely sure about that i guess that was the problem maybe when he was released i know that's one of the things his attorney argued in mitigation and that led to this crime is that he was not on his medication and therefore he was unable to conform his behavior legally but i don't think that that maybe problematic from a broader perspective but i don't think that should be problematic for the  right thank you thank you very much and your time expired mr parker but i'll give you one more minute competence but second far at the even even the statements he makes it sense in saying he is just parroting mr anderson is parroting his attorney in the district court when he said they didn't shoot at them and that was only after trial coun said mr anderson objects that he didn't shoot at the individual om and his second statement the district court said some charges were dismissed were vacated and then mr anderson repeats the charges were dismissed he's not engaging in any independent intelligent thought but second important point is even if you don't find the change of police behavior alarming on this did based on this court case law you don't need to you have to look to all factors including things outside of the court yet because the defendant knew him and had severe cognitive and mental health limitations that suffice to raise a bona fide doubt about this competence because the record does not conclusively show mr anderson is entitled to know we found his due process