from the moment of our arrest on june twenty eighth two thousand and eleven to that they'd of a report that is found in the sealed appendix four years more than four years  it was not until a combination of medications five psychotropic medications were prescribed to him at the final institution and the report was rendered that he was that the court was inattentive to his medication history the condition that he was in the trial but there was a lot of attention paid to the i mean the psychiatrist was called to testify isn't that correct in this case and i was psychiatrist as i understand it testified that the medication regime had remained the same he testified to the condition that the defendant was in terms of his competence to stand trial i have his charge made observations about the way in which the defendant was behaving in a trial his attorney indicated  that the defendant was working with the attorney through the crowd so all all of that was on the record all of that was done that's not an overstatement of what happened i i think that there are many that only two of them that occasions of the five that were the winners and we have to and i have to keep giving emphasis to that the district court was so conscious of what was the combination of medications that had to be given to this man for him to be competent to stand trial that he called them the winners he issued an order to the metropolitan detention center that these five medications at that dosage could not change and then during the trial when it was obvious had to go such a change at the minute commissions were not being given that the combination was not being given he ever on how are the medications affecting you mr muggles do you think that your client is understanding do you think that the medications are being affected if you comment is structured you will not fin i'm sorry but i cannot agree with you and with your characterization of the record that is not what happened that is not what's in the record and i would be remiss not to mention that well you know if you medical director would have been the overall person responsible for the medical care of the invades that is correct correct and therefore that person would have been responsible for ensuring the general health as well as the competency of the inmate at that didn't she during her testimony yes she said that she was she was that the defendant was given three as opposed to five and two were the same in the old one wasn't if i recall correctly but didn't she also say that she was monitoring or th said that they were going to increase the medication and  he she sort of restated what the medical evaluation said what his disorder was but i don't remember on this record that she said that she would be i'm sorry and what she did say was that she went to the holding cell to talk to him that's what she said on the record not that she was monitoring him at n b c but that she went went to the holding of the fact that he was that he understood because she did say he knows what's going on yes there is a difference between knowing what's going on and understanding and knowing and being competent to assist in your is that there was going to be an active form of fluctuation of that medication during the trial they were going to be increasing the medication during the trial and from the date that this report finds out that there is going to be this increase this fluctuation this fear he ation during the trial of the medications that he was being given which why the what by the way are not the winners nobody asked whether he was  that final exchange between the defendant and the defense attorneys and the court on the last day of trial when he was being asked are you going to put up any evidence are you going to testify when your understanding your understand of the record was because of ongoing concerns about his competence to stand trial and so that the result this attention given to the kind of medication he needed and finally after all this time all these why the argument is so strong that he was not given a fair trial because after all this attention was given and after the right combination of medications was found for him to be competent to be case in april last year there was a case from the heart which was the police and the allegation was nobody asked what the effect of the medication was and you properly said we have no record to think that the medication could have done something there is nothing here that is the exact opposite of what's happening here in this case we have huge prayer current we have a reason to believe that we have to guard this man's rights we have a reason to believe that this is important and we have a reason to believe that the district or has the responsibility how the all this record of asking the right questions of asking whether this is something that is important why there he is understanding whether he is competent and whether we have to stop this trial all together because m d attorneys do you believe that your client is understanding what's going on other than he is talking to us and he is discussing with us is he understanding point where they are asking that defendant in a defendant says i don't understand why did the district court did not ask the attorneys please explain on don't record what is intent your client did not understand the not understand the whole trial or did he not understand the exchange that we're having now was that clarify to him if he clarify all his doubts did you answer his question clarify some some factual discrepancies that were brought up first your honor to your question about why this case took so long to get to trial it should be noted that this case originally was a death penalty potential ca and for many years there was it was back and forth with a capital crime crimes unit to see whether the attorney general was going to certify this case as a death penalty eligible kates when the case when it came down that the attorney general was not going to proceed with this case is a death penalty eligible case that is when mr mr this is attorney mr mottos requested the first competency evaluation so and that competency evaluation was ordered by the district court in december of two thousand and fourteen as stated in the evaluation itself the evaluation was rendered in november of two thousand and fifteen and the trial began mid two thousand and sixteen but first there was a competency hearing in april and there is also another issue that is not quite clear in all honesty from the court we know that at the time of the evaluation mr been asked this was on five different medications and notwithstanding i was five different medications the forensic psychologist diagnosed him with antisocial personality disorder and said that he was competent and said that if he wasn't participating with his attorneys it had nothing to do with his competency but it was part of his disorder fast forward to the hearing in april eighteenth two thousand and sixteen where mr my last has interacted with the court where as judge whe re you noticed he said that he was who articulate that he was calm and that he noticed that he was able to to say what he wanted to say but because he explained his displeasure and even being sent to a mental competency hearing at that hearing trial competency hearing excuse me but what's noteworthy of that hearing was that they started in the morning and that is when the judge made these maybes observations a sanitized long was a prior to the trial about two months getting somewhere and on the record in the afternoon mr mottos explains my client is complaining that he hasn't received any medicine since he's come to m d c and miraculously three days before this hearing he's getting his again now there is no discussion of what those medications are so it's not clear from the record if we're talking about the five medications in the report or the three medications that he was actually on a trial but regardless of the medications that he was receiving at n b c the district court made that finding but that's not all that happened in this case because if we want to just say well let's focus on what happened at trial the district court had sufficient interactions with the defendant where he was able to gauge his competency and know that it was the same type of behavior that had previously seen and a district judge appreciation of the demeanor is given some deference here and i'll go specifically to show the personal interactions that he had with the defendant on june twenty seventh after the journey was impaneled in opening statements were about to begin the trial was postponed because we jerde did not arrive however during that opportunity the defendant in a court assisted with or interpreter the parties discussed because the court wanted to know whatever happened to the plea negotiations in this case to see if there was a possibility of a plea and that is when mr malvo said no we never received an offer from the government the government said we have no offer he can straight plea a few wants to and at that point the court says what does he want to do and mr martin says he wants to go to trial and he says no i want to hear it from your client and at that point listening from everything he wasn't confused mr alaska says i want to go to trial the next day the next day again the topic of medication is being is being discussed where mr velasquez tells his attorney i'm not getting enough medication the court says well i'm going to talk to the warden and that day they go together in chambers what happened in chambers is not on the record but the next morning they put it on the record where they spoke with the warden and they spoke with a psychiatrist in florida who saying the medications are going to stay the same then we have on june thirtieth again counsel brings up the claim that he was not receiving proper medication medication yet again and he personally the court personally asks the defendant for consent to speak with his physician and at that point the defendant looks at him and said yes you may yes you can speak to the doctor he says thank you he says ok he's clearly understanding the back and forth of what is going on on june twenty seventh the court had spoken with a psychiatry in florida about these same medications that would reach remain the same and when she came in on the first she said he would be receiving them all in the proper dosage she met with the defendant he seemed goal oriented that she was clear that he understood what was going on and she gave an example about how his condition shows that he wants to control the little things that he wanted to switch se because within the last two days over seven people had personally identified him as the perpetrator of the crime she said that his condition has this type of control and that's only going to continue and it did at closing art prior to closing arguments the defense attorneys explained that he was demanding two days to discuss the case with him so they could make the arguments not only that even after increasingly inside him education counsel advised to the court that the defendant had been actively participating in his defense and encouraged more participation so not only do we have the district court to see that his behavior remained the same throughout the proceedings we have defense attorneys very season arguments to discuss it when that happened was after the government closed its case there was the issue of whether the defense was going to present a case mr moto said that no we're not going to be presenting the case in the district court in wired whether the defendant was in agreement with us and at that point he stated i'm a little confused when you look at the gist of that interaction it shows that and it's consistent with what his attorneys were saying that mr velazquez wanted his attorneys to present  argumentation and he even says that my attorneys say that that's argument not evidence now in most cases your honor and we have already very various transcripts a defendant may show some confusion as to what's argument and what's evidence but that doesn't have to go with his competency when we look at the cases cited by defendant in his brief which basically revolves around you then yes which is a different rule but in context where you're giving up constitutional rights and entering into a guilty plea the just knew it was on medicines didn't say anything this record is vastly different as we have hearings we have competency evaluations we have the court viewing him on a day to day basis and we have the defense attorney appreciation of that but the questions that this court has found on plane era to be sufficient is are you ok to proceed with the proceedings do you understand what's going on and it is the government's position that from saying that i want to go to trial you c talk to my attorney and then saying my attorney is explaining to me that that's arguments not evidence that he may have shown a little of hesitation the court asked him do you remember i told the jury that you don't have to present anything and he says you didn't tell me you told the jury all of this behavior is consistent with his diagnosis and nothing on the record supports the claim that she was confused or dizzy or that she was even receiving different government's briefing is that you seem somewhat loath to defend the way in which that evidence was presented to you move very quickly to the harmless error argument to do i misread a expert that wrote the report in the report here wasn't even entered into evidence so first we have a waiver argument for lack of proper are developments but telcel this is an instance where the expert witness did testify about underlying tests were done interpreted those terms but since she was not the individual who actually did the d n a analysis defense counsel was question was no that currently the supreme court case law is unclear how the confrontation applies to precisely a situation like this where the underlying lab analysis is used then by an expert who does the matching now there have been certain preparing for this argument it has been found for example that although a defendant may not have an opportunity to cross examine a lab the lab analysis excuse me the lab technician in this case where the testifying individual is in this case miss carne's parson familiar with the laboratory procedures and where she's able to testify about the quality control as the quality assurance manager and her responsibilities she talked about the different controls using a negative sample and a positive sample she explained that she reviewed the notes from the out the the biologists here in that there was no indication that was out of the ordinary that ha been held to have no confrontation clause and i found this case last night and it's an unpublished decision out of the ninth circuit if you're honest would like it i would i would consume it as a twenty eight day well what what the government's point is that in other cases where there have any confrontation clause issue this court has sidestepped it where you don't need to decide this issue because any potential error in this case is overwhelmingly harmless beyond reasonable doubt the d n a evidence in this case was humiliated it's not the sole evidence that linked the defendant to all of these crimes to the contrary every victim with the exception of mr gomes id the defendant as the perpetrator in open court the two guns that were retrieved from him have his arrest excuse me no your honor i did not the two guns that were retrieved from him the first victim's gun and the police officers gun were found in his waistband on including witness identification his arrest the presence of firearms the ballistic analysis the police hat that was in the mountain near the gold chain that he wrote for mr gomez since this out since this evidence here otherwise take the view the prior record that was introduced was a self authentic agent document and so there was no need for the kind of testimony that the government offered what what did the government feel the need to offer the test i think it's government do that yes your honor it is clear it is stated on the record while the government did that after the the conviction itself was properly entered and there was no objection to that they called in rodriguez's testimony and it's specific on the record or where it says we don't want him claiming that he's a different kind of mail esteban velasquez up on that not the one in that record so that's why they tied it in so he would say that it's just not another person who happens to have his same name to say that that can't be another it is or you know different and different individual that's specifically on the record when the objection originally came was one of the people that had investigated him on previous charges of murders that's how she knew him that's where she knew that it was the man in the video ok thank you two minutes to clarify some statements since to the issue that was issue number one pill one of the medications this was a death penalty potential case but through out the death penalty proceedings that were being conducted where the department of justice was trying to decide the issue of competence was brought up and you will find on the sealed appendix which is the report that this man was undergoing evaluation just want to clarify that doctor law base never addressed the issue that he had been identified that he car may have had stated that he had been identified by several witnesses what she said was that what he was manifesting was part of his condition and they should expect that that would escalate and you will find that at at the transcript of her testimony it is talk at two fifty two page eight that is also with india you will find that first i don't really understand what's the difference about putting your report into evidence and having somebody testify about that you worked before the jury is still here say it was still evidence that came in about a report even if the report was not placed into evidence she was reading from to results and were obtained by other technicians so there is really no difference if the report was clearly states that there is a difference between white and black to missions do in a matter that is not testimonial not directed towards the prosecution of the person which was what happened in williams this was like some sort of website induced we send in our d n a and and and we get it and then we use that to to connect the evidence of the koran this were analysis that were made thompson specifically for that case specifically for the prosecution therefore williams is not applicable here