affective disorder and i think because of that this order he would have been incapable of forming the specific intent to violate the law that was the defense in the case according knowledge that is the defense for the defense continually argued that throughout the course of trial in pretrial proceedings as well it was indorsed by the court the court agreed that was a permissible argument in its support of the argument and the other offense proffered quite a bit of evidence and marshal quite a bit of materials that it intended to present to the jury seems to me that in your arguments you need to know what exactly went before the jury because there were things you know i think an argument can argument can be made that the doctor exceeded what the parameters that that  the that the judge had ruled he could testify to and so really a lot of what you're arguing about actually came in and the doctor was looking at medical records was testifying from them you know as a basis and the doctor even for him to  something so you know his statements about god and that he couldn't have you know he couldn't have in the sea with exact words for that chain then it seems that  his actions are guided by this principle and it seems to me that a lot of the things that you're saying didn't come before the jury got what didn't come through the front door it came to the back door and i don't think necessarily that s couldn't form the intent this is a much more generalized statement and i think that was the problem the district court had a view that is a very specific stephen as opposed to more generalized want to talk about being god it didn't say compelled it was merely a symptom that was consistent with all the prior history that mr won't had that his delusional world the delusional disorder that he had was dictated by these parameters set forth through him he believed i got so i think while the court they have know i didn't get everything out of that when it's one thing that did come out in the court is right he did discuss the contents of the reports of pat and i think this is the biggest issue in this case and probably the most important one of this point he discussed the contents of those patent records however the problem is at because of the stipulation between the parties on the nine to eleven and eight zero three six the contents of the patent records in the petal jail records were miscible at least all of the contents of the guard to the doctor's observations analyses and diagnoses you know you get to hear the testimony but now you don't have to look at the records and that the trump list for of the rain and terms of the court decided that it was going to be too time confusing and too time consuming and confusing to ent things can be admissible but that doesn't mean that you know i think you can be admissible under a business records exception you know where you have a stipulation but i think for a three contract contract things for the troubles it wasn't for all three is the basis for the court's exclusion of the documents in the statements because they're more probative than prejudicial and will assist or aid the trial or a factor in considering the expert's testimony that's the analysis it's that was done by the court it's an implicit for three analysis but what's important about that discussion by the court is it clearly viewed those documents in the contents as not being invisible or it wouldn't have any need to discuss it under seven zero three seven zero three deals with inadmissible evidence in when it should be allowed in and that's when it's more probative than prejudicial but the court should not have even your first i want to point this out the excerpt of record page thirty five the district court discusses what is it miscible and it specifically says that the background information including the reports relied upon by dr you not speak are admissible or at least there are important information you can discuss assist the jerk in addition wonder boy evocate clear that this would have supported the theory defense and corroborated the arguments by mr walling we have two competing arguments we have mr owens argument through me that he couldn't afford the specific offense because of the mental illness and we have the government's argument that will wait explanation of events in addition there were rebutted quite a few arguments made by the government in this case the government argued in closing that duchene osses opinion was clouded and it was biased because he was a paid the fence witness well they certainly would have countered that two it would have showed that these are state doctors and the doctor the state doctors at patton ordered by the state court to do the exams and the federal jail obviously federal employees the doctor there did the exam unbiased individuals who rendered very similar conclusions m it readily and i argued this emphasized the videotape on the videotape and this is the other there are a lot of other reasons why it's relevant the government argued in all its witnesses testified look he wasn't exhibiting any bizarre simp signs of behavior and i guess they were falling back on that he's not dancing off the walls he doesn't belong in a rubber room those reports would have explained that that's not symptomatic of someone with a delusional disorder he wasn't someone who had these outward expressions of you know mania or did things that were never crazy and that's why they were also relevant because the evasive when he was being interrogated by referring to god and religion because that's part of his delusional disorder all these doctors at patton and the federal jail discussed how he always route discussions conversations or talk to religion and to god and that he wasn't doing it to be smart and to be evasive and not to have to answer the agent's interrogation questions that's what the government argued and clearly all these documents would have backed it up and corroborated the defense and shown that this wasn't the case so it's very very relevant especially evaluation where he was deemed incompetent but restored to competency and in return a state court over a period of i think eight or ten months there were five or six reports generated that went through symptomology his background and history and observations correct but again to the district court we're told the jury can't consider that for the truth so whether he read it or not the jury is now told you can't consider the truth if that immiscible in that was wrong you know these weren't statements made by the patient to the witness doubt those were another issue those could have been redacted from those reports there were plenty of statements by the doctors regarding their observations but opinions and conclusions those were generated by the doctors themselves are not any statements from m and i had an alternative theory for admission under eight of three eight under a supreme court case called each aircraft where these especially are public records because when or patent it was pursuant to the court order and court order patent to hospitalize him examine him prepare reports so these are essentially are public records being prepared by somebody now with an obligation or duty to do this same thing with the records of the jail in san diego so obviously the primary basis for admission was the nine to eleven stipulations and i think the alternative also could have been a public record exception so those are just our go ahead finish of how on this whole thing is resolved by determined by deciding whether or not these records are admissible this whole business about the jury instruction is either right or wrong opinion of all of these records were admissible true if they're not admissible this instruction was disciplined you know and if they are admissible there's no need for any instruction from now and then on this issue of what the doctor was permitted to testify to are we not limited to simply the difference between in your opinion was mr walling suffering from the delusional disorder on the day of the arrest and the answer was yes when the jury heard that right difference we're talking about isn't that all you didn't get to do is use the word guided i think it was just since a manic expression by i don't think that i'm about to were guided guided is all were arrest there were some other questions at the district court the clue to me from asking him what were they they were discussing a prior arrest leading to the hospitalization of pat and he said that was inadmissible so i wouldn't be permitted to get into any of that with the doctor to in one of the bases for his claim of that was that the governor would have a right of cross examination but that that primarily even though you didn't get asked the exact question that you wanted it seems to me that doctor you know he testified that across the board people in the end have concluded that his delusion is based on his preoccupation with god and quote and quote all of his actions are guided by this principle unquote so you just didn't get to say that he was this case started on page two i think it's one thirty eight of the essence of record what the court excluded were two different things both statements by the defendant as to why he committed this offense and as to why he committed an earlier as far as the records go any and every question which counsel was allowed to ask i think it goes for about eighteen or twenty pages all the questions he asked about the patent records he got to ask anything and pretty much everything he wanted and as far as the expert testimony which frankly the government believes is irrelevant in the first place we shouldn't really even be talking about this because this all went to volition when your guy did it by somebody somebody is that's volitional in the way to make this clear is to say well what if he had said about smugglers  guiding me to do this or forced me to do this it would make it clear this is of all the shit that's an excuse or a justification it might be dressed might be something else but it doesn't negate specific intent god can tell me to do something but i will still intend to do that thing in fact mr wolens own statements i follow the law of god not the law of man shows very clearly he's able to form the intent so from the get go this is all irrelevant assuming it's relevant at all then the only thing we're talking about here are self serving statements as to why he committed the crime that's awful that's the end that's the only thing he was unable to talk about the anything and everything else was fair game and he did in fact talk about now it finally comes to the point where they want to actually see these records but the harm here there isn't any harm because they've heard it all and then finally let's assume again that it is irrelevant and that it might have been in error or that assuming it was there that he should have been able to allow answer those two questions and that's where the command it is clearly harms why the jury heard this they hurt they need a common sense judgment what we have is a person who came to the he people were hidden in mid that he knew people were hidden in his car emitted he was going to receive six hundred dollars the material witness testified she heard him negotiate for the six hundred dollars he knew the other prices that had been charged for smuggling and the jury looked at that behavior and all of this they just simply said look it doesn't make any sense and really that's that's the bottom line here ok but with respect to the m incapacity defense which was offered the jury specifically said a note asking for these records what's your response on well two things number one it's irrelevant it didn't go use charts are they they have props with them or they're looking at things well the jury always wants to see him light or if they're not marked and received into evidence they're out of luck that would be easy but here we do have this whole process that occurs earlier where they do in fact they try to introduce these as being admissible yes and it's objected to cells it really goes like what judge levy is saying from the standpoint the answer of no is fine if they're not admissible if they're properly not admissible if they saying look i what this time then it came in but i'm not going to let it come in where they just get to willingly go through and read all the stuff defense was allowed to do but but even if we concede even if the government would were to concede that this the main argument is still and for the government has always been all of this was irrelevant and he got to put up a pretty much all of the end and the jury considered it in rejected it in the face of very clear concrete evidence and i think that that is is where it should go and i think it's important that the when the government when the congress passed the insanity defense  the the the fence tried to qualify doctors overman the government psychiatry just to to testify as to this and doctors the women basically said look i really can't testify that he was suffering under this delusion we have a stipulation of authenticity yes these are authentic records of an institution that had this man on one occasion for examination and on another occasion for actual create the right and the court said these are inadmissible now why why is any record admissible of any hospitalisation if these are in the very least the one where he was being treated right i think what the court said was that the under the expert rules the expert can rely on this sort of evidence in its opinion but in order to form the basis of opinion it's not for their troops and  why not well in terms of the statements of the defendant saying why he did it why not just because they're self serving hearsay ok well that would have to be x rayed all right all right but in any other than that i going to be reverse going no i disagree ok good is ok it doesn't have to be reversed because well i guess i am i guess in his heart i guess the argument is basically harmlessness yes when you look at the entire evidence  on that if we give these then undue weight by giving them to the jury to make and a lay assessment as opposed to relying on the expert that's prejudicial and it's in that sense i think it's prejudicial because the records did in fact come in as the basis of the expert's opinion and so now that the if you give the actual records to the jury to see if you now form it's only opinion based on on the record themselves without linking it to the testimony of the expert i think is where the the prejudice would lie and i think that would be a separate basis upon which to uphold you know the key de times wrong before we ever got to the jury you know the excerpt of record shows page forty four one thirty nine one forty five one eighty eight twenty nine i guess is where the jury know comes in but there were requests made by me to have these moved into evidence and of course right i didn't need an expert even testified block makes their paranoia like it was no expert the records are brought in to show that the defendant suffered from a back injury he could've played from the police like claim so there was a one story versus another story situation which is very similar to what we have here is competing stories based on testimony by government agents who are late witnesses not doctors not experts were never qualified the such so for the government say this is harmless i would disagree the jury was out one full day deliberating the court right they requested these these records they clearly wanted to see them they were interested in them while the agents may have testify clearly their way opinion testimony is not as strong in my opinion or persuasive as an expert would have been and in addition these records were were presented and created by non biased actors unrelated to the defense which is what i think is very important to consider here these are individuals who work for the state and work for the executive branch of government this is part of my questioning the doctors at the jail  not part of the defense so i don't think this is harmless by any means are thank you counsel think you're on the case just argued will be submitted