good morning your honour's may it please the court elizabeth richardson royer on behalf of the petitioner appellant adam gordy i plan to try to reserve two minutes for rebuttal when adam gordy was tried for the robberies that resulted in his sixty three year sentence he alternated between heavy sedation and active delusion depending on whether he was taking his meds mr gordy's lawyer told the trial judge the mr gordy was over medicated and could not assist with his defense that he had a longstanding history of mental illness including suicide attempts mr gordy in fact tried to cut himself in court in front of the trial judge but despite mounting evidence of mr gordy struggles the trial court refused to hold a second competency hearing and by doing so violated right to due process now the state court's decision to the contrary is not entitled to deference under the ada and that's true both because the state court made unreasonable determinations of fact under eighteen u s c section twenty two fifty forty guess crediting the state trial judges determination that all of this that your client was doing was was taking essentially yes your honor that's that's the primary how would we how in the world would we sitting here looking at this cold record be in a position to know whether the streets roll judge was wrong i mean he i think it a number of points said i know nobody's going to believe me when they read this because this is so outlandish i've never seen anything like that i mean how how are we supposed to evaluate failed to perform the inquiry that was necessary for him to make that determination there was a competency hearing and there were five experts three of whom declared that he was competent so what is it about that process that have to be repeated as a matter of due process i guess that's let me just finish the question there i have another question but it's kind of separate ok certainly at the time that the initial competency  place which was months before the trial three out of five of the experts did find mr gordy competent those experts examined him between five and nine months prior to trial and in drop view missouri the supreme court made clear that the trial judge has to be continually on alert for signs of incompetence and maxwell if you wrote this court despite the fact that experts four out of five experts in the initial competency evaluation found that the defendant that case was f this court held that it was unreasonable for the trial court not to hold a second hearing in light of new evidence of incompetence the way the defendant acted and my second question though is that with respect to the description by the trial judge that your client was a lingering if you will there is some evidence that the that he was coherent at many points and able to communicate effectively with the court and the timing seems of his outburst seems rather suspicious or at least it could have to the trial court what's what's wrong with that why you something of supportive of what the trial court found if there had been no other evidence of incompetence the trial judge may have been entitled to rely on his observations but the supreme court in this court have both made clear that demeanor cannot dispose of a competency determination the trial court cannot simply observe the defendant and put aside the other evidence of incompetence yes but the background noise or background music here is that he had been found competent previously right so it isn't just  a cold determination without any backdrop there was an initial company's determination but in light of the representations made by trial counsel subsequently regarding mr gordy's longstanding mental health issues and his attempts at suicide in light of mr gordy cutting himself in court and the way that he behaved in court the trial judge was not permitted under the law to simply observe mr gordy and make his own determination about whether mr gordy's demeanor meant that he was competent and this court has rejected that type of thing in tar as we printed the defendant testified in that case and the trial judge said look i looked at this defendant testify and from what i see he's competent and this court held that that was unreasonable and twenty two fifty forty two because of new evidence yeah i mean i listen i i think you your position would be one hundred percent on the money if we didn't have this finding from the trial court judge that your client wasn't that this wasn't genuine in terms of the behavior he was exhibiting because if you credit all of that as really you know being a genuine manifestation of your client's mental say i mean obviously at the very least you need to at least have a second here and so i'm with you on that i guess where i get stuck and i know you've addressed this once but i'm still stuck there is yes in maxwell you're right i guess the state trial court judge there to found out that the defendant was faking things but there was more and more overwhelming evidence pointing toward the direction of incompetent there and i guess i see less of it here and i'm stuck with this finding by the judge that all of these things that seem pretty telling just do you just th is so transparent i can just see this whole goal is just to delay things that i'm not going to i'm just not buying it and so unless you're going to say that well no you can never credit that kind of fine you know i'm not sure what to do that kind of finding can't be simply credited where the trial judge failed to perform the necessary inquiry and the trial judges in maxwell towards reproaching me robinson and mcmurtry v ryan in all of those cases the trial court looked at the defendant and said this defendant is faking and that was not determinative and i think here what's really important to realize is that the trial court's failure to inquire inquire meant that he didn't have the information that he needed he didn't know that mr gordy in the year before trial had tried to kill himself ten to eighteen times according to psychiatric records from the prison when you say failed to inquire do you mean phil to hold the second competency hearing were getting shorter yes your honor failed made determinations without the necessary facts which is an unreasonable determination of those clear you're saying that if a client exhibited exhibits behavior in court that would might suggest they're incompetent no matter how clearly convinced the trial court judges that the person is faking it they can never ever refused to hold a second confidence hearing because according to you if they don't do that they won't have the necessary information to figure out whether in fact the person who is fake i think this case is is different than than the hypothetical that you're proposing in to in two ways first defense counsel repeatedly insisted that he could not communicate with mr gordy could not represent him the second thing is that the trial court recognized that there was a need for more information about the dosages of the anti psychotic and other medications mr gordy was taking that in and of itself is that is at least an implicit recognition that there's some doubt and the trial court said i'm going to find out this information i'm going to make a request of the president i'm going to see what medication mr gordy is on and he failed to do so and that's the type of failure to inquire you know perhaps if he had done that that could have been an inquiry short of a hearing that might have permitted him to say you know these dosages are nothing to be concerned about but he didn't do that you know and he didn't have access to the psychiatric records that the psychiatrist who examined mr gordy the day that he cut himself in court and this is not in evidence that that might be the record is the record is the record at this point fair enough and even on this record the fact that the trial judge recognized that mr gordy medication was an issue the fact that defense counsel said you know i can't work with this person those are reasons that make this more than just a case where the defendant is acting out in court and unless to save some time for yes your own thank you do  good morning your honor just supervising deputy attorney general margaret maxwell on behalf of respondent warden there was no deficiency in the process here the trial judge was not required to check his common sense and experience at the door of the courtroom and ignore what he was seeing you just heard your opponent say that in every one of these cases the trial judge made a finding that the person was faking and then the less relief was was granted and i i guess i certainly remember that from observations i mean the trial judge right at the very beginning he is you know he's on an alert he notices that there is strange behavior and he's seeing it in quite clearly from this record he's saying this is ridiculous what is going on but he doesn't just say that i rely on my own assessment here he looks in the file and he sees oh there's this transfer memo and it describes conduct that i'm saying there are a have been five you know is not legitimate well the difference one difference between maxwell in this case is that the maxwell assessment the assessment was twelve months before the trial and here we had the most recent assessment was about four months before the trial we also have the fact that in maxwell the petition wasn't present in the courtroom so the trial judge wasn't really assessing his day to day behavior and here the judge sees him he sees what he's doing he's saying what he's walking into the courtroom he's alert lucid and then he just snap this sort of you know half on and off the table sort of position that isn't doesn't even make sense as a common sense thing because you you know how are you supporting yourself if you're so i'm conscious that you can't understand what's going on medication the medications not going to do this to you this is not how you behave how you're in and i haven't figured out what medication the defendant was taking well we have some indication on the record and the george did say that he would make some  with me in terms of distinguishing these other cases and i guess i'm struck by counsel's argument that i mean unless you're going to have the second competency or competency hearing how are you as a judge you're not a trained medical professional how are you in a position to really determine whether the person is faking it or not well the the procedure that california a applies whether the courts want to assess is that out that's the procedure has been upheld by the supreme court and the you this case is that most people who are just trying to fake incompetence don't smuggle a razor blade into court and slice their wrists or hands whichever one it is in front of the jury that just strikes me as behavior that's well beyond you know acting out or you know saying incoherent things most people don't do that to themselves right and so it seems to me whatever the prior findings were four five six months ago once you're the judge and you observe someone do that here's why and he explained why and one of the things he explained as i recall us i think shots were carefully to the side where they would actually do damage exactly and that he had taken you know very precise efforts to you know feel these plates so they wouldn't really do any damage to himself until he got into the courtroom and would be the most disruptive he could possibly be and so it's not the court interpret it not as a effort to of self harm of true self harm but an effort to stymie the process when what i mean that makes no sense do you think that a defendant who i guess you think his strategy was just to delay things that that's going to get him out of of having the trial go forward and what is that going to do in terms of his the jury's perception of i mean  makes no sense to me and i guess i would think even if you're trying to say this this is a guy who was just doing all he could to delay and disrupt things i mean unless you're got a screw loose you're not going to go in and cut yourself in from the jury that just makes no sense to me mental illness doesn't equate with competence first of all and also i can't pretend to get fully inside his mind but you know this is a person who is facing you know he's committed a host of crimes he had wanted a plea bargain early in the process and perhaps he's thinking that the harder i make this process the more likely someone is going cut me a little bit of a break well the timing was somewhat coincidentally it was it was just when he was getting ready to be identified that this happened certainly that is absolutely true that the cutting you know occurred sort of at the moment where someone's about to say hey here and here he is now we can't do that and so he was you know what he actually thought long term that's going to accomplish i think  that he would start over that's why i think he thought he was and sort of position where you know he he's in custody he you know doesn't have a lot of options and he is trying to do his best to to try to take control of the proceedings or perhaps if the trial was delayed he could get an attorney as opposed to representing himself prior confidence proceeding so he knew how to go about doing that if that's what he believed and quite truthfully he was having mr gordy was going to pose a problem for him because this is someone who is not acting in this best interests is doing things the jury may not take sympathy with or understand and you know so when he says you know i'm having trouble with him early on i think that's believable but i don't think that rises the level of a doubt that requires a hearing and then subsequently you know we have both these early indications and then we have what develops later which is counsel later says you know there is communicating with me he's been court thought he was communicating effectively with the ones that's true you know the petitioner did make a motion to substitute counsel subsequently argue that person which is very articulate when he was doing that  know traditionally you know even outside of we rely heavily on trial for its you know in court assessments in both the federal and the state courts because they're the ones who are there and can see what's going on in this particular judge and i  think as as was noted earlier you know lamented that you know there is no one who is reading this record who will have the advantage of having been here in this courtroom and actually to witness this this is just a total travesty he said that it was ridiculous completely process so i mean to suspend it and have the actual hearing that is that's true so with the same jury have been available how would that have worked procedurally with the jury have remained part of the proceedings and been cautioned not to thank you counsel and he i believe you have some rebuttal time i have only a minute but i'll try to just make a few points the first has to do with the timing of the expert reports and counsel said that the that they were approximately four months before trial and that just isn't true for four out of the five of them were completed by september two thousand and seven which is more than seven months before trial those those experts actually examined him a month or more before that and so most of the report these reports are eight or nine months old which is not that different than the thirteen months that was at issue and maxwell in addition the trial court although he said i relied upon the prior judges representation which is apparently echoed by these experts there's no indication that he actually sat down and read those reports so to the extent that he relied upon them without reading them that's a good and reasonable was reasonable if he just relied on t finding of competence why would that be reasonable in light of the new evidence that came up the self injury the outburst in court defense counsel's representations for the trial judge to not even have read the prior expert reports would be a real failure to inquire and that's not a fact finding process that's entitle to deference the other thing that i wanted to i see that i'm out of time so i will just sit down thank you i think we understand your position well we appreciate arguments