here on a death penalty case it is united states v fields number thirteen seven zero two five you're well aware that each side has thirty minutes you're also well aware that two members of this panel of already heard the case once on direct appeal albeit a few years ago so you know no need to recapitulate issues that were raised in the direct appeal and we will despite the fact you have thirty or because you have thirty minutes we appreciate your biding by the time constraints and when the yellow light comes on you have two minutes when the red light comes on you may stop talking if you need that incompetent to waive his right to counsel and specifically focus on the substantive claim as opposed to the procedural claims of ineffective assistance or the district courts level of inquiry focus on that and then also focus on his claim of ineffective assistance for failing to do an adequate penalty phase investigation and again primarily focus on the failure to investigate mr fields mental illness but what i'd like do before i begin that discussion is pas for a moment to indicate that this is here in a unique procedural posture because it's here for argument on a certificate of appeal ability and as this court recently said and ask a media for a certificate of appeal ability a defendant needs only to show debatable merit to his claims and in a death penalty case the court should err in favor of granting the certificate of appeal ability other procedural point i would want to make at the beginning is that mr field was did not write an evidentiary hearing on all have these claims in the district court and the standard under twenty two fifty five is that an evidentiary hearing is required unless the motion in the trial record conclusively shows that no relief is is merited and we would argue to this court that mr fields many attachments  hoops petitions certainly race color will claims of merit to which he was entitled to an evidentiary hearing mr ellis on the question of the evidence you're hearing the evidence you hearing would be primarily to resolve any issues of material fact so i hope that as you address that particular issue you'll be maybe more specific in the briefing was as to specifically what are the disputed issues of material fact certainly with that let me begin with the claim that mr field was incompetent to waive his right to counsel and again i would primarily focus on the subs didn't claim as opposed to the procedural aspects of that in his twenty two fifty five petition mr fields presented evidence in the way of sworn declarations that he was incompetent to waive counsel specifically that he had an irrational belief a delusional belief that was the product of his mental illness specifically mr fields suffers from bipolar disorder when he becomes manic he becomes extremely paranoid and grandiose and that was the diagnosis submitted by dr woods in this case has at the at the pit at the punishment phase there was there was testimony about the fact he had received here trick and psychological treatment at the youth commission that is mother suffered from mental retardation and that he had been to good diagnosed with anti social adolescent behavior disorder what what specifically more is there than that that you think should have been presented to to satisfy the effective counsel standard well that was evidence that was presented i believe in cross examination of the defense expert about on the topic of mr fields intelligence the defense expert in penalty testified in this field was an intelligent man and therefore his opinion adaptable  and in response to the government elicited testimony that mr fields had been diagnosed with a my social personality disorder in addition he has been previously diagnosed with bipolar disorder what was not presented at the hearing on mr fields competency hearing that took all of one minute was specifically that mr fields was bipolar that his symptomology is such that he presents when he's in a manic phase as extremely grandiose and extremely paranoid mr fields in this case said that he believed that his attorneys his defense attorneys were working for the prosecution he had complained about his attorneys earlier in the case but on the eve of trial he learned from one of his defense attorneys that that defense attorney had actually been involved in the prosecution of mr fields when he was a juvenile and as a result of that he indicated that he believed his prosecutors were actually agents of the government and working against him there wasn't any inquiry into that by the district court at the time of trial in fact the district court specifically told mr fields as did his counsel please don't talk about your delusional beliefs please don't talk about why you want a new counsel what happened instead in part because the judge wanted to complete the hearing on competency by the following monday was that a local psychiatry just conducted a thirty minute evaluation did not look into any of the background information that you've referenced judge smith did not ask mr fields any questions about why he wanted to relieve his counsel and waive the right to counsel but instead simply found that he had the cognitive ability to understand what he was doing and we don't challenge that aspect of mr fields cognition we recognize that he is bright but he's also very mentally ill and the two are not inconsistent and unfortunately in this particular instance what happened and what dr wood says is he believed delusional e that his counsel was an agent for the government  and that is evidence that's never been tested if you read the district court opinion on this the district court opinion simply cites to the opinion of dr mark and then as judge smith you referenced the later opinion of dr pryce who specifically in his declaration says that he wasn't asked to assess competence that wasn't something that defense counsel asked him to do so when you look at the district court order the district court order is not treating for instance dr would statement as true but then finding that there is insufficient evidence to support this claim that mr field was incompetent to waive his right to counsel but instead simply ignored it and found that there was other evidence that was perhaps contradictory that is exactly one of the contradictions that needs to be resolved in an evidentiary hearing was he competent in terms of his right he did have stand by counsel but the denial of the right to counsel and i recognize we're dealing with a slightly different topic here we're dealing but we're dealing with sort of the wrongful acceptance of a waiver of the right to counsel so but when we analyze the value of counsel in a proceeding in courts uniformly treat that as a structural there in other words they don't ask to show prejudice they simply ask whether the court erred in its decision well i understand that but this is quite a different situation his conviction was a very direct appeal right his conviction was affirmed on direct appeal because mr fields acted as his own attorney  and i think it's not difficult to recognize how unable he was to fulfill that duty he he fumbled through most of the trial the adversarial system that we depend on especially in a capital case to test the evidence didn't work in this particular case and probably the best example of that is the fact that judge smith required mr fields to take a dry run with a witness who was the critical witness in the case this was the witness that that mr fields alleged was actually the murderer and mr fields had to examine that witness outside of the presence of the jurors with the prosecutor present with the witness on the stand  moment but the judge was was justified in that wasn't he given that mr fields acting on his own was was engaging in what it really amounted to testimony rather than question well the judge was certainly able to take some steps what we argued on that particular claim the claim regarding the preview of cross examination was that the step should not have included the prosecutor being present in the witness on the stand because or that the jury should have been told that this is not the first time this witness has been cross examined but my point was actually more towards judge jones question about the reliability of the outcome of the guilt phase and it's my position that mr fields acting on his own because his mental illness interfered with his ability to conduct the trial on his own doesn't lead to a reliable result now you bring this forward however in the context of his decision to waive counsel i mean he certainly is not the first defendant to have thought that his lawyers were in league with the government and won't be the last but how did this actually manifest itself during the trial that that his mental illness  manifested itself most prominently when he when he said i believe that my attorneys are working for the prosecution and therefore i don't want to proceed with them and therefore he gives up one of the most elements of our claim thank you for the question there are two components to the claim one component focuses prominently on the waiver of the right to counsel whether mr field was competent to do so and we indicate that we presented sufficient evidence to merit a hearing on that and that the court should remain for here in the second part of the claim has to do with mr field's competence to conduct the  trial and that's the issue that really arises most prominently under indiana versus edwards now the district court decided under indiana versus edwards that mr fields was competent to conduct the trial and so applied to standard recently in the government's supplemental material they cited to this court the pinetti case which raises some questions about whether indiana versus edwards applies retroactively that's the first time that the state ever made any mention of the possible application of t and so i can certainly discuss why this court shouldn't can apply  given the government's failure to raise it until supplemental material and given the fact that the district court decided this case apply in indiana versus edwards but the court is correct that there are two components to our clay and in indiana versus edwards does not reach the first component which is the waiver of the right to counsel is there a reason why this waiver is is cognizable in haiti is when it wasn't raised on direct he did have different lawyers on on director view than he had at trial correct and we have raised it as a claim of ineffective assistance of counsel based on the failure to investigate and certainly this court's decision on time about waiver his waiver of counsel at the trial so here you're cloaking that in ineffective assistance in order to litigate it now because otherwise it would be foreclosed from review would it not we don't believe so we believe that we can raise the claim that he was substantively incompetent to proceed and albeit we have to support it with new evidence which we did we don't believe the existing record when the case was reviewed on direct appeal necessarily supported that but we've also raised it as a claim of ineffective assistance of counsel for counsel's failure to investigate and present that evidence and this court in versus collins in one nine hundred ninety case from this court specifically held in a similar situation that counsel could be held ineffective for failing to investigate and present evidence of incompetence and that was a  likewise we have also raised it in the posture of the courts limited inquiry into mr fields incompetence specifically that the court entertained approximately one minute comments are not uncommon in criminal courts i've been a criminal defense lawyer for nearly thirty years now and i've certainly certainly heard it many times but the question is really what underlies that is this simply a complaint that the that the defendant is not satisfied with either the quality of the representation or the accusations and the possible conviction and punishment that follows or is this actually  now it may be that the government wants to put this in the category of this is just a regular defendant making a regular complaint about the quality of his counsel that really isn't tied to or the product of his mental illness that's certainly a conflict that could be resolved at an evidentiary hearing but mr fields presented specific evidence in the form of the testimony scuse me in the form of a declaration of a psychiatry is saying i've reviewed a great deal records records that for instance dr mark and dr price didn't review and that the court didn't have and i've concluded that he is incompetent to wait because he was irrational because he really did believe that counsel were conspiring against him as an agent of the prosecutor and you have to read this also within the what mr fields is doing roughly during this period of time in the detention facility when he's awaiting trial because and that's also information that wasn't considered by judge smith it was either at the time of the waiver or later and what he's doing at that point is writing a complaint saying jailers are conspiring to kill me the punishment phase is that right he did and was was it the same counsel that he'd been complaining of was and mr fields and i mean just the record reflect don't mean to cut you off or give you a chance to answer but i mean does the record reflect that he cooperated with that counsel with the punishment phase well the record doesn't reflect any outburst by mr fields but you have to keep in mind what mr fields said at the beginning of the case when he waived his right to  counsel which is if i'm convicted i'd rather get the death penalty and so again while that's a question a right question for an evidentiary hearing if he believe that counts so we're working for the prosecution why did he really up with them during the penalty phase will they want him they never left did they say well no they said they served a standby counsel during the course of the trial and when he was convicted he asked  the court to have them service counsel but again he indicated at the beginning that if he was convicted he'd want the death penalty and so the evidence in our view is as consistent with this continued irrational delusional belief that his counsel was working for the prosecution as it as it could support the other view that in fact maybe he didn't believe that to the depth that we're saying again that's what and a couple of cents what is the test that the district court should have applied when he said that he wanted to be his own lawyers and determining if everything had been done according to the rule in your view what what was the test that should have been and why the test that should have been applied was whether the waiver was the product of an irrational delusion i suppose that's redundant to rational delusion but but which described competency as a two party in koori first of all is the ability to rationally assist counsel and to and to have a rational and factual understanding of the proceedings so and then it gets  is versus moran which is the one nine hundred ninety three case again from the united states supreme court and all of those cases are focusing on the rationality or irrationality of the defendants choice the choice to waive counsel or the choice to even go dean as i believe it was also to plead guilty and so that's that's half the test the other test then looks at the actual conduct of the trial by the mentally ill individual and that comes from most recently easily distinguishable done first of all is a twenty to fifty four it's a case involving the imposition of the death penalty by the state and it's also a case where this court granted a certificate of appeal ability into you have four and a half minutes it's a wonderful suggestion i'll take it so the second issue i want to focus on is mr fields ineffectiveness claim based on the failure to investigate his mental illness and we've been talking a great deal about exactly what that was as judge smith in his order dismissing this claim acknowledges that it's possible that mental illness mitigation presented by the mr fields if true could have made a different result but then concludes that relief is not granted in part because he says the jury had other evidence of mr field's mental illness but of course that other evidence was evidence that mr fields was characterized as an a social personality disorder the defense expert was asked whether there was any treatment for being a sociopath and the answer was no and so the government took that and was able to promote this idea that that meant mr field would remain dangerous  contrast mr woods dr woods is diagnosed mr fields as bipolar something that is treatable something that can be medicated something that does humanize him now the district court said that this was the type of the events that was double edged and i would agree except that i would define the double edge in a different way than judge smith use that term it's double that in the sense that it mitigates it reduces culpability it humanizes mr fields it  explains the trauma that he went through and the consequences of that trauma on his mental health but it also serves as a double edge because it takes evidence that the government was able to claim was aggravating and m gates that so a great deal of the penalty phase presentation by the government was mr fields misconduct in institutions as a youth and as a young adult when he was in prison or the youth detention facility  and the only answer that the defense team was able to give to that bad behavior was that mr fields is older now and he gets it gets it was actually what one of the expert testified to instead if you look at that evidence to the lands of mr fields long unfortunate history of untreated mental illness it it takes evidence that was formerly aggravating and moves it to the mitigation category  helps excuse and explain that type of evidence and so once again this is a claim that deserves in an evidentiary hearing there are many contradictions that were resolved in the district court's order simply by saying i don't believe the evidence presented by mr fields that is the type of evidence that should have been heard in an evidentiary hearing so with that i'll ask the court to grant see away and remained this case for an evidentiary hearing and reserve  this is also a jury that sent out a question that said we are unable to unanimously agree in penalty phase what should we do and we're alternately told to deliberate longer so we know at a minimum that this jury was very close to the line based on the scant mitigation that was presented if you add this mitigation was that that was assembled in post conviction and especially the mental illness mr fields is is is very far over the line and he has shown that he was prejudiced by the failure to investigate this all right thank you you have time for about may please the court my name is jennifer freeland i represent united states i want to begin with the idea of prejudice because i think that is where a lot of pavia of councils arguments break down as you know at this phase there's that to be a real w aggravated forces the mitigating when it comes to the penalty phase let's agree with all of that and as explained in the briefing the united states believes that when all of this new evidence is real weight against the aggravating evidence that was presented at the penalty phase it just simply can't overcome it what did the jury hear what did the jury know the jury knew that mr fields escaped from jail with the purpose of killing his girlfriend sons or a call that when he got out of jail the first thing he wanted was a gun and a car that he went to hillcrest hospital and convinced his girlfriend to leave with him because coleman was visiting her prematurely born infant and he talked her out of that hospital room and into a car with him the jury knew that he was angry that that baby was not his that it was born to another man the jury knew that he drove miss coleman out to the middle of nowhere and shot her twice in the head and dragged her body up onto a trash heap and left her there the jury knew that miss coleman left behind three small children the jury knew that earlier that same night fields had taken his other girlfriend out into the middle of nowhere and had put a gun well had contemplated killing her but then he changed his mind the jury knew that several days later he carjacked tammy edwards from hell cross hospital he grabbed her by the throat and as she got away and looked over her shoulder she saw him point a gun at her the jury heard and  heard this in the penalty phase they heard the testimony of fields ex wife april fields who described the abuse she suffered from fields the rape the control and she explained that at one point fields thought she was being unfaithful so we took her out into the middle of nowhere and put a gun to her head and she had to beg for her own life the jury knew that fields was a serial killer in the making that coleman might have been his first victim but that he had been convicted previously of attempted murder for a drive by shooting and their own mitigation specialist jane by had to admit on cross examination that fields told her he believed that women existed for his pleasure and that he enjoyed the thug life he enjoyed toting around guns he enjoyed the person had become now contrary to what a view of counsel believed there was mitigating evidence presented at trial in the areas that now they have found greater detail about in fact jan by the mitigation specialist reviewed the new evidence and said yes this goes into greater detail than what i discovered but the jury knew that fields had a horrific life the jury knew he'd been abused the jury knew that his mother lived in very impoverished conditions that she had her first child at thirteen she had sherman fields the defendant when she was only fifteen years old sherman never knew his father who was in his forties significantly older than his teenage mother and winfield was only two years old his mother moved in with a man named william william bradford and the jury heard that bradford beat sherman's mother that he beat mr field and his brothers from the age of two to the age of eleven i mean talk about formative years the jury knew that the jury heard the mitigation specialist explain that the jury heard his mother alice we need to testify the jury knew that the only way they got out of that bad situation with bradford was that fields mother alice sweeney shot him shot him and her best friend who was also having an affair with him and did fifty days in jail and got five years probation but unfortunately the jury also heard that it didn't get any better for fields bradford was out of the picture but they were so poor they had to move to the a stella maxi projects in waco and once they were in the projects he was exposed to drugs and by twelve years old he was carrying a gun start to get in trouble juvenile facilities the jury heard this dramatic story about how fields tried to hang himself and he had his best friend was in juvie with him and they both tried to hang themselves except his best friend succeeded and died and that field was traumatized that his best friend had died they done the suicide pact and he didn't die but his best friend did and they're just a few years later fields watches as his grandfather gets mowed over by a drunk driver right in front of him he had friends who were killed the jury knew about this but that didn't overcome the horrible aggravating things he had done and the new evidence doesn't either in some ways it's difficult because his counsel the conviction was in two thousand and four and they have they've been able to put together all this mitigation evidence and you you think well why i couldn't their original counsel do that but when you look at it through the lens of of course the counsel was also preparing for the guilt innocence phase and you look at the supreme court cases that have reviewed mitigating evidence and what is expected the courts have consistently held that it's ineffective when counsel misses a whole area when counsel didn't find out about sexual abuse when counsel failed to review a file of past convictions even though they knew the prosecutor was going to talk about that file that simply isn't what happened here counsel covered all the bases back in two thousand and four now his counsel might have gotten things that explain it in greater detail but that simply isn't enough for for what they are requesting the jury knew the fields had a horrible life but they also know knew he committed a heinous crime and i think another important thing to point and point out is that counsel was stuck with the facts i had defense counsel at the time had a record of fields being incarcerated where he behaved terribly so on issues like future dangerous and how will this guy do with a life in prison defense counsel was faced with these facts that fields threaten guards he threatened fellow inmates he made a list of guards he wanted to shoot he told guards that he had people on the outside who would kill them he told guards he would kill their families there was a guard who testified who said he dealt with twenty thousand inmates and field was in the top two percent in terms of dangerousness there was testimony about the mclennan jail on on highway six was what they called the highway six jail which houses federal inmates who are currently in the process of the district court in waco and in the history of that jail there was only one time when they said we can't house this federal inmate send him to a federal facility and that one time was sherman fields it took twelve guards to get sherman field to the showers fields had a horrible habit of masturbating in front of female guards as i was flipping through the evidence i thought oh this must be a duplicate these are all on march twenty fourth but no he masturbated in front of a few more guard three different times on one day the defense counsel had in the face of that they said you know what does this guy have what good can we show and they showed that he had an above average intelligence they got dr pryce to go in and say he's as he ages he's got some of these problems will go away they put on guard too had known him over the past year in the federal facility and said he's gotten better he's finally with the program they had  family member say you know he was a hard worker he had a lot of problems but he helped a siblings with their homework he had a lot of problems but he'd get up early in the morning and take care of the horses and i think it's unfair for us ten years later to judge them and say oh but he should have said that his mother abused him and he should have said that the grandfather abused him they did the best with what they had and and even if they had done everything that counsel now suggests it would not have gotten over that hump of all of that aggravating evidence i want to you can you address the his incompetence to waive counsel yes your honor and i want to answer your question judge king about the test because with all due respect i think it was not adequately addressed previously the test for competency to stand trial is whether a defendant can rationally discuss this case with his lawyer and whether he has a rational will make sure i get this perfectly right ability to consult with counsel rational understanding of what's going on yes the facts and the procedure and there's no sign that he didn't yes he was grandiose didn't have to turn just what the record shows hits attorneys had no reason to believe that he had a problem right that is correct that you don't they have affidavits in the record that say that is correct all right but my question i mean i don't want to know please answer judge king's question but i also want to know what's the standard by which we assess this because you know looking back at previous fifth circuit opinion the i raised on direct appeal was whether his waiver of counsel was voluntary because he had counsel with a conflict and there's a footnote in that discussion says something in the fact that he does not say otherwise beyond waiver of counsel appears to have been knowing in intelligent in any of been in it makes no argument to the contrary like myself but know myself what i read the case yesterday and in the district court filings i personally didn't file the original response we did not raise the procedural bar on that question i certainly think it would have been a good approach to take  knowing that the previous panel did look at the waiver and granted they were focused more on the conflict with counsel they certainly reviewed the carry you can tell reading that portion the opinion and didn't seem to have an issue with the fact that mark dr mark conducted the examination and informed the court after his examination that fields was in fact competent enough to waive counsel and i do want to clarify something i think has been a little distorted the hearing involving field's waiver of counsel occurred on two separate days i think some of the briefing suggest it was a one minute hearing well the record shows that the friday before travel supposed to start field again ask to represent himself and the district court judge conducted after a full ferretti hearing on the record he talked about you don't know the federal rules of evidence you don't know the federal rules of criminal procedure and it was a full hearing and during this hearing really toward the end it's when the prosecutor stands up and say says judge an appellate court might look at this and say maybe we should also exam competency the all the red flag for anyone in that courtroom was that counsel had filed emitted a proposed mitigation instruction saying that field suffered from diminished capacity and when the court said hey what about this instruction we just got they said oh no that had more to do with his abuse and neglect it didn't have to do with his competency competency as far as i understand so that was the only red flag in fact his counsel said let's do the competency evaluation but i will be shocked if anything happens if they find anything but the district court and davies counsel complains that i use this phrase that been over backward backward but it really did you get the sense that everyone in that room wanted to do everything it could to be fair to fields and they found out the doctor price was on call and he couldn't evaluate the field until monday morning the district court did not even make a ruling on the motion to proceed pro se friday afternoon so then the hearing resumes before the hearing monday morning dr mark conducted and it's in the record his standard his standard interview for competency and current mental status he did not say i conducted a truncated brief quick as i could he said his standard interview and there's no sign that he's incompetent and while that might have only taken a few minutes monday morning the district court with marked dr marks conclusions combined with what happened friday hearing came to the conclusion that he was competent to make that decision and reading that and i recently read the full trial and yes fields made some big mistakes he represented himself and he would have had the benefit of a lot of a lawyer but when you read that transcript he had a rational a factual understanding of what was going on and in fact because he represented himself he did not have to testify and take the stand and face cross examination but several times he told the jury i didn't do it now prosecutor would stand up and say oh let's strike that from the record but the jury heard him and certainly in  opening and closing he presented himself as an innocent man in his own words and i'm not saying that he did better than counsel would have done but if we look at the full record and certainly the district court who was there in two thousand and four was in a great position to do this field was confident his performance showed  his performance showed it and judge king i agree with you in my own district court practice it's not uncommon for defendants to think that their attorneys are working with the government that often captains because of plea negotiations and i'm very concerned that if what happened with fields case in a man with an above average at i q if that is deemed to be to fall under the standard that i think there would be other instances where a defendant's right to represent himself would really be curtailed and i don't think their claim injures i q it hinges on what they perceive to be his mental illness bipolar and post traumatic stress disorder so i don't think it's simply an i q currently not an q problem at all i agree and the way they're saying it presented itself was the fact that he thought his attorney was working for the government and they do bring up this idea of he made some claims about perhaps his guards were members of the k k k and perhaps the guards were poisoning him but the record shows that that occurred at least six months prior to when he asked to represent himself pro se and also fields was not a shy man about say what he thought was unfair and during his time of trial and during this forever hearing he didn't bring up his guards and poison him he didn't bring up the k k k he and he didn't bring up his confinement i think some of these confinement issues are a case of hindsight and oh well you know what hey can we also point out that they took all these extra security measures maybe that affected you to say ask you directly is he bipolar there was a finding that he was bipolar by the texas youth commission way way back when way back when so that was in the record at the time that came out during the mitigation  i have been in front of the district court judge who says that half the defendants he sees are bipolar but but that's not one of the mitigating factors that the jury was asked to post says they didn't and because the mental health issues that mitigation were came a lot of them came in during cross examination in part because what counsel at the time knew was that texas youth commission dr had diagnosed him with having an antisocial behavior disorder and said he could not be treated that he showed no guilt or remorse and at trial at least two witnesses who talked about fields confessing it just anyway and they had their own interactions with him and having talked to the prosecutors who were there there was a lot of evidence that he was a sociopath so rather than get a complete psych evaluation of him back in two thousand and four they decided to focus on the positive and his i q there was no sign of brain damage dr price certainly examined him and back to the way the waiver meant to mention this dr pryce  his affidavit says there was no sign that he lacked competency to waive counsel and dr price evaluated him the day before he he made the oral motion to proceed pro se and of course dr would the the i will agree and i think the district court acknowledges that the mental health issues are some that were not completely fleshed out but looking at the affidavits it's clear why to me reading the trial because you had the sociopath diagnosis you had his witnesses saying he lacked remorse or guilt at the same time as the mitigation specialist drained by his telling counsel i think we should do a complete psych warka so are you saying to be to be a little more pointed about this thing raises in the context well aside from competency in effective counsel in investigating in producing the evidence of mental illness and are you saying that counsel were not ineffective because they knew that new movement illness and made a conscious decision not to presented more emphasis to the jury or are you saying that there's no prejudice i think the first part of your argument was directed to prejudice so you also now saying national ineffectiveness yes your honor i'm saying both would help to summarize things yes your honor thank you for doing that  o i kept jumping back and forth between the penalty phase and the waiver of counsel but the issues do touch on each other and i think it is reading dr woods evaluation six years later and maybe even the average guy on the street might say this defendant is a death penalty case he should know waived is his right he should have an attorney but lawyers who work under for radda and lawyers and court the court know that while it might seem ridiculous to the guy on the street there's a there is a constitutional right to represent yourself to trial and i'm glad i wasn't the district court who was faced with that and shortly the district court did everything its power to get fields to change its mind but had that right and the record shows that he was competent to make that waiver i did want to touch briefly on some of the brady claims that were raised in reviewing all the briefings for a moment i thought that some of the brady issues were ones where there there could be some more factual dispute but in rereading the district court's opinion it did strike me that with regard to brady the district court assumed that the evidence presented by havey his counsel was true that sort of gets us out of that oh there's a big factual dispute and conducting its analysis of the brady issues the district court evaluated them as if true and was left with the conclusion that if i may summarize the great brady issues a witness counsel out he describes transactional immunity that he could not that he would be immune from any conduct and the district court looked at that and said that's just not simply not enough to get over the prejudice of of of a for brady challenge that the difference between even if the jury completely got the difference between use immunity and transaction muti it was a going to get over all the evidence of guilt the other was another witness daly on who in an interview with several years later suggested that he had sit some notes to the prosecutor and those notes were never turned over to defense counsel the court that the notes according to his counsel could have been used for impeachment because according to this interview the notes describe facts a little differently than daley on had discussed the trial now the government would say these notes don't exist but we don't have to have an evidentiary on that because the court just assumed that these notes existed and assumed hate even if there were some impeachment evidence in these notes daily on it was one of seven witnesses who testified about fields confessing to murdering coleman and inconsistency can easily be explained for example one inconsistency is was that field escaped carjacked a woman and then killed coleman whereas the record shows that the carjacking took place after these are the types of impeachment evidence that just assuming that these notes existed and just assuming that there was some sort of violation with regard to use of community versus transactional immunity so i did want to point that out to the court for a number of the questions i do want to just close by by stating that this is a sad case it's a case that has been difficult for me to wrestle with and it's sad because i mean you read the testimony of coleman sister and she describes a two year old walking around asking for mama how do you explain to a two year old the mom is gone forever and then you have a horrific testimony about fields who has a teenage mother who moves in with this man who beats him who is finally out of the abusive situation only to go into the projects he had a horrible life but he allowed it to affect him in such a way that he made other people's lives horrible and like it or not in our democracy we have the federal death penalty and like it well the prosecutor's closing comments certainly are quite moving but of course what they leave out is the severe mental illness that mr fields and frankly his entire family has suffered and what that mental illness does is not only mitigate the crime but help explain the history and that mental illness was not investigated the mitigation investigator in this case in her sworn declaration says we did not investigate the mr fields history of mental illness or the family history of it and so what the jury that sentence mr fields to death god was essentially the agreed testimony of dr who's methodology has now been rejected by the texas court of criminal appeals and dr pryce who both essentially agreed that mr field's conduct was not the product of a severe mental illness not the product of bipolar which was hardly discussed at all if at all but instead that he was anti social personality disordered in a sociopath who chose to do these things who was making conscious freewill decisions on impacted by his mental illness and so that is entirely different category of evidence that is that the jury that sentence him to death did not hear any just wondering  sake of argument there were nineteen things had been into the jury's mitigating factors and twelve of them were either found by eleven or twelve jurors and one of them and one of those twelve might have been nine but the others were all eleven or twelve jurors bipolar is not there i agree with that but they went on and found him that he activating outweighed the mitigating so with the best it seems to me this would have been one  more mitigating factor how can it be go beyond that well it would have been one more mitigating factor but it would have also been a mitigating factor that would have helped explain the great deal of aggravating evidence that the prosecutor went through just now so have taken information that was in only the aggravation category and moved it to mitigation but it simply does i think demonstrate the point that this was a very close case and so if you add this particular piece of evidence or any of the other the other evidence that the government says is more of the same it moves the jury very much towards life and i want to recognize that this court just recently and asked me and granting a certificate of appeal upton as all cases where some mitigation investigation was done but it wasn't sufficient with regard to mr field's competency to waive counsel the focus of the district court hearing was solely on mr field's cognitive abilities so for instance when mr swan one of the attorneys defense attorney says i think he's competent he's sane i think he's smart and we don't disagree with that but what mr swan also said in his sworn declaration it was that mr fields believed that he could make witnesses tell the truth that he had some special power to do that and that that wouldn't happen if he had counsel and that's the kind of delusional belief that should be tested in an event and evidence you're hearing likewise dr mark in his sworn declaration said he had no background information specifically no history of mr fields prior mental health diagnosis one of the questions that should be answered in evidentiary hearing is if presented with that new evidence the evidence that was uncovered not by trial counsel but by post conviction counsel does that change his opinion that is yes and that same question should be asked  dr pryce and that is a reason that this court should grant see a way and should remain in this case for an evidentiary hearing thank you ok thank you very much