unequivocal statements to them that he would have to lie to the court in tendering his plea and finally that the district court abused its discretion in validating the fact is in denying the motion to withdraw the guilty plea your honor at the time of the plea before the court as a person with a twenty five year history of severe mental depression for which was ongoing he with he was taking five medications for depression for severe treatment resistant depression he had been disabled from the practice of law he had attempted the most extreme treatment options known to science transcranial magnetic stimulation and he was a candidate for electroshock therapy at the onset of the comic way this trick or asked the defendants if either one of them were suffering had had been treated for mental illness lately mr carr madras said yes your honor lately and for the past twenty years the courts response to that important information was not a word what did not say a word about mr card mr karr madres mental illness at that point one of his attorneys stood up and said your honor i have a  list of the medications mr karr matters taking so we don't have to go through that what's the point is that you have to go through them in response and when he received these medications the courts response to the medications was not one single word he did not say a word about the mental illness the court did not say a word about these medications this is the entirety of the crowd on this subject you're on with respect to mr conrad murray do you fully understand the proceedings that are going on here yes and nothing in terms of these medications would have any effect on your ability to comprehend no that's it yana this court said that one of the friend is taking medications the court needs to identify what medications are being taken how recently they've been taken in what quantity they are being taken the purpose and the consequences of the drugs in question and wish them in response to our challenge the district court said that is exactly what i did with respect to the district court it did not utter searching in light of five medications for depression a twenty five year history of severe mental illness that the court was informed of but didn't didn't judge smith at the  into the record presumably your best case about what the defendant's mental state might have been and what effect if any the medications that he was taking may have had on his ability to appreciate and comprehend his situation so don't we owe some deference to that finding where you are that's why we're here peeling that finding you're not here the people who are most up centrally involved and rejected them so don't we start a war or saying that that you've got to show us not that one of us if sitting as a trial judge might have done something different but that the district court abused its discretion in determining that this plea withdrawal did not meet the appropriate standard which legal stand in oh you say that in your brief and i am i'm puzzled by that because because i read your brief in and i thought that was a perhaps your strongest argument but then i reason that he then says and the first circuit has said in considering whether there's a fair and just reason these are the steps i have to file have to determine whether the plea is knowing voluntary and intelligent and then i have to consider these factors in the list five other factors all right he makes a long discussion as to why the plea is knowing why he finds the plea to be knowing voluntary and intelligent and then he goes through each of the applied the wrong stand because what he said your honor he did talk about the standard in a rather nebulous way but when he discusses the issue of the fair and just stand his exact quote pretty close to his exact quote was i find the point to be knowing voluntary and an intelligent therefore no just reason can exist for it's withdraw now you don't have to be henry higgins to figure out the grammatical import all right and the most important component of fear and just reason is knowing voluntary and intelligence we don't argue with it is probably the most of what you value is fact right when he comes to his decision your honor he does not abide by what he said earlier he says there's the police and the police ok therefore no just reason exists to with roy and then he goes on to say but for completeness sake i will briefly discuss the other factors he does and resolves all of them against there is there is there is no way to look at that and not know that he is looking at is making his decision through the prism of the case is over the war games over if he finds the that he gave excuse me may have been acceptable for a perfectly healthy person who's taking claritin or an aspirin for his heart but there is no way under the case will that that is a remotely that question so in other words the trial judge fails to ask the defendant whether anyone made any threats or promises to him to induce  questions which wouldn't have furnished basis for not letting him plead can't possibly lead to vacation of the plea hypotheticals aside your honor that's not what we have here we have the court fully aware of his mental illness and fully aware of meds in the hardiman case which is cited by the by the judge by the district court to hurt him in cases a judge is required to investigate the defendant's mental state if there are any indications  later that he might be incompetent to plead the fact that the defendant seems competent when answering the judge's questions that the police hearing is not conclusive mental diseases may alter the premises of a person's thinking rather than the articulation of with appearance or manner what the court should have done your honor and which would have resolved the issue is asked mr cameron to tell me about these medications why are you taking five medications what this each one do what effect the meds have on your thinking on your mental acuity what is the extent of your mental illness how do you feel today how are you depressed today does your does your mental illness a fact what you were doing here today had the court done that at least we would have had the beginning of a thorough and searching inquiry if there was no inquiry at all that's a structural air it's a violation and the court must reverse on those grounds good morning donald lockhart for the government it may be instructive to actually look at the list of medications that the defense attorney passed up to the court during the plea colloquy set forth at page thirteen of the governments  if you look at that list now we're later you'll see that there are several columns in the first column it lists all the names of the medications many of them are for blood pressure some of them are for depression the next column states the purpose of the medication blood pressure blood pressure depression anxiety the next column states the dosage of the next column states when taken and if you look at the top of the list what you see it was last updated as of november eighteenth two thousand and twelve which was the day before the defendant pled guilty so the judge who states in his published opinion that he reviewed that list after plea we asked the defendant and his attorney whether any of these medications affected his ability to plead guilty and they both said no later on both defense attorneys said that they did not have the slightest concern nor did the district court judge at the time that the defendant could enter a knowing and voluntary plea not only that we know that neither of the defendants regular doctors said that he was incompetent to plead guilty the only  voice on the defense side on that issue was that of a paid expert who met with the defendant for two hours three months after the a fact and reviewed some of the records and the judge in our view rightfully discounted the evidence of from that source does the judge's ability to observe the defendant during the four days of trial prior to the entry of the plea have any impact here it has a huge impact and not only do the agreement as recently as the day before he pled guilty he's involved in the back and forth discussions that his attorneys are having with the government he's proposing certain conditions he's rejecting others there but his the judge privy to plea but we do know of course after the fact that that was the case so the judge the judge knows after the after the plant you that the government attorneys think that that the defendant was very government i'm not arguing that the record doesn't speak to it what i am saying though is that the interactions mr karem artery had with his attorneys predate that and go back to the four days of trial the judge certainly is watching him interact with his attorney in the course of the trial moreover this is a defendant who is an attorney himself don't forget but so with respect to these observations by the judge during the trial is there a balancing that should be taking place here so for example if the list of medications had been some had included some other medications would that tip could that tip the balance the other way and require the judge to and to inquire more and i take your point that it has it can have some impact i'm just trying to gauge the impact that it should have where where what we like to have judges do is to inquire more about the medications well in this case the judge certainly asked point blank the defendant his attorneys whether anything in the medications affected the a defendant's ability to plead guilty and you would think that that is the most valid source of information and point the defendant and his own attorneys surely are in a position to wasn't best practice simply to leave that initial inquiry at the two questions the judge asked well of course ideally a judge will inquire further would make this court's life much easier if a district court did the question  here is whether this all adds up to an abuse of discretion and well i doubt actually that's the question that i have is is whether that should be the question you know that that i authored in opinion recently where we you know loosen the reins a little bit when it came to inquiring into medications and i'm beginning to wonder whether we should do that or whether we should have a more strict rule well i mean you can certainly point out in your opinion the best practice approach but it's quite another thing to reverse a conviction under circumstances here where we haven't even gotten to many of the other factors that the district court should consider in deciding whether to allow defendant to withdraw his plea here there are two factors that make this case completely unlike any other case that we've seen in the first circuit number one the finding that the defendant in this case engaged in any pre strategic maneuver to do this plea withdrawal knowing in advance of the withdrawal that that's precisely what he was going to do and doing it so that he could gain a severance in this case from that of his codefendant so you have this very machiavellian strategy by the defendant unprecedented as far as we can tell in the law this circuit to sabotage a lengthy trial that was in its fourth day and that involved seventy witnesses in the pipeline many of them elderly many of them terminally ill seven of whom had actually died prior to trial to darrelle that whole process knowing full well that he was going to just come back and move to withdraw his plea and that in the bargain he would get a severance that is an enormous weighty factor that the district court placed reliance on of the difficulty in placing too much reliance on looking at the result with all due respect that the defendant and i have a case called the some are not that the defendant was present during the diesel mon trial not just the you've got to be careful that's right the defendant was present during the decent on trial but he was presumably how aware of the decent long case more broadly including the defendant's earlier withdraw of his guilty when you say presumably there's no evidence of that the only evidence is that he was present during the  well the court disagreed with our position on that point i'll go to the prejudice factor which certainly is borne out very thoroughly in the record this is a case where we had a trial that was expected to go three to four months seventy plus witnesses many of them terminally ill many of them elderly we can't even find a decision in the first circuit that even remotely comes close to this case in terms of the predators that the government would  endure if the defendant were permitted to withdraw his plea and allowed a new trial two and a half years after the fact remember the district court made its prejudice finding two and a half years ago and although we don't know on the record precisely how many witnesses may have died in the end from war how memories may have faded or where witnesses may have moved to etc etc it stands to reason that in two and a half years the risk of prejudice the plea withdrawal motion abused its discretion all right and we have to look at what what the projection of prejudice reasonably was at the time so that we still favor the government but the fact that the appeal has taken two years way against the defendant and the process well even if you turn back the hands of time to the moment when the district court decided the plea withdrawn moment more motion virtually everything that i've said is still the case that the only point that i made was that the playing at the because the defendant had four plus months between the date of the ruling and sentencing in which to bring to the judge's attention this alleged legal error based on the two sentences in the published opinion would been of very easy matter to present the judge with that argument judge these two sentences seen us to reflect the fact that you have the wrong legal standard do you want to deal with any case where we've said that the failure to make  actually just the three a lot of cases that we cite pinu saint hill and rameau's i don't think any of those are factually comparable to this case you may think that better but they're not this case i don't they're not this case but notice that each of those cases the defense attorney had much less time in which to lodge an objection and yet the playing their standard applied nonetheless now the defendant says well these weren't final decisions but we think that that distinction is a loser already the decision in the mistake is in a written opinion or in a bench ruling or in a journey instruction it seems to us shouldn't matter what should matter is did the defense attorney have an ample opportunity to correct the alleged a late to do so now even assuming for the sake of argument that review is not for playing there that the issue was preserved the fact is there was no error at all the district court in this case resided the fair and just reason standard three times at the outset of its opinion it went on to apply every single one of the factors that this court has set a district court should apply in assessing whether to allow a defendant to withdraw a guilty plea and not only did it apply those factors but it went into extraordinary depth as to each one of those factors so when you consider the court's opinion as a whole and in context with these two sentences it is quite evident that the court did not deny this motion simply on the basis that the the rule eleven that rule eleven was complied with and the plea was fond terry now the final point to make on this front is that even if you could somehow find an error in these two sentences that error would be harmless under any possible standard because the notion that the district court judge on  come out the other way based on a reevaluation of this case in light of the two sentences is that the chances of that happening are close to zero this is a judge you comprehensively weighed all of apartment factors and determined that that the defendant's motion was borderline frivolous the idea that this judge would go back and and come out the other way based on reconsideration in light of these two sentences you know is not a basis for recusal the fact that a judge has carefully weighed all the factors and is convinced that the defense motion is without merit is not a basis for reassigning the case but your your honor with respect to the handing of the list of medications is that what salman seven on a cost that is all about is that what the case was all about that you can hand up a list of medications and not say a single word not engage to defend them at all about his mental illness and about the methods we don't even know there's nothing in the records even show that he did you look that there's not a word or in the car to the with respect to this issue and the whole point of it is that you need to discuss it with the defendant with respect to the attorneys for him that he was fine these are return is who didn't bring to the court's attention the full extent order and nobody moved to question competency leading up to trial i'm right his attorneys were not his attorneys did not want to upset this apple cart your honor that's why didn't they they didn't inform the core of the church then of his mental illness that's why they didn't inform the corps when mr karr madre said i'm going to lie to the judge and perpetrate a fraud upon the court those attorneys wanted that plea to go through so desperately i didn't ask about the plea ask you about the trial there was no comedy litigation pretrial america you are correct tell what level of mental distress they're in just by seeing him sit in a chair especially in a way has this specially in light of the testimony from his doctors which the court went through her kilian lance to try and downplay these are three medical highly respected medical professionals one of whom truly both two of whom treated him for some time all of which said he's clearly compromised the judge the the district court looked at this question through the lens of is he competent is he competent and because and because of that he is again looking at the question through the lens of the invalidity of the pl which is of course a standard that is used after sentencing instead of looking at it as a factor in the analysis of is this it does this constitute a fair and just reason which the commentary didn't have to no one had to establish that he was incompetent for purpose of the factor of was he disabled was he compromised when he gave this plea your honor if there's any doubt about this the doubt should be decided in his in mr we're not reversing a conviction we're giving him the opportunity to go to trial that he would have had had this case