we're argument next today the case seventeen seven five zero five madison versus alabama mr stevenson mr chief justice may it please the court it's undisputed that vernon madison now sits on alabama's death row unable to fully orient to time and place as a result of several strokes he suffers from acute vascular dementia which has left his cognitive abilities greatly diminished he now has intellectual functioning in the borderline range he has a memory score of fifty eight and these severe disabilities have rendered him the wilderness and confused most of the time mr stevenson i'm it's a question for both sides but i'm having trouble with a firm grasp on exactly what issues are presented now just tell me if i've got this right there are two the first one i would say is to someone who doesn't remember the details of their crime can he satisfy  pernetti simply on that basis he knows what capital punishment is he's knows what's going to happen he just doesn't remember what what he did in the second one is whether or not vascular dementia can be a basis for a ford claim in other words he meets the ford standard but it's not caused by insanity it's called by caused by dementia now my right that those are two separate questions i think there are two related questions and the only i think what we would argue is that that first question is that yes memory with something else can render someone incompetent and that something else may not be dementia that is someone who has a brain injury and is now impaired in a way where they have no memory of anything it's not that is the result of an injury where the brain is injured and incapable of actually producing memories or creating the kind of rational understanding that this court has required a second example would be something like a coma we would argue that someone who is in a coma is not competent to be executed because their state of mind would not be reconcilable to what this court has held and for it is nasty fits in part of the problem is the use of the word loss of memory and i and your briefs you seem to go back and forth on this are you conceding that amnesia about the incident alone where you can function in every other way in society would you be inco know to be executed that's right we do not contend so you're a loss of memory isn't even what the cause of the loss of memory is if this person who has amnesia can no longer function because they can't even what now fill in the blank that's right what would cause disorientation cause and ability to understand their circumstances have the kind of symptoms that we have here mr madison can't tell you the season of the year he can't tell you the month of is without memory of his commission of a capital offense does that in itself render that person incompetent to be executed i think it could but i think the reason why i qualify it is because there aren't circumstances that i believe are consistent with what we've argued here and i think that's a question that calls for a yes or no answer the only thing that is lacking is memory of the commission of capital offense is that in itself presented you ask whether a person a prisoner who has mental disability leaves him without memory that's right of his commission of the capital offense so do i take you now to be saying that if you are left without memory of the commission of the capital offense for some reason that doesn't have something to do with mental disability that's not enough i'm just hoping there's mental disability that has given rise to this lack of memory then it is well i guess what i'm conceding to justice kagan is that we're arguing that more is required than someone saying i don't remember my crime you can't execute me the state has an interest in being able to impose punishment and to execute these kind of based on a mental condition well that's correct that's an issue it's a mental condition well that's my point justice alito were arguing that it would have to be accompanied by some mental disability and here we argue that that disability was dementia and the reason why i'm stressing that is because you can't understand the nature of that memory loss you can't rely on it as a credible basis for concluding that someone is incompetent to be executed and so you understand how that's possible and that's the only point i'm making is that without something to look to right i suppose what people are thinking of and i'm not even sure if this happens ever or whether whether there's any sort of physiology behind this but the idea of a kind of fugue state or a blackout that's unaccompanied by anything else does that count as the kind of mental disability that you're talking about you know it is not it does not we're not arguing that someone who is competent to stand trial who nonetheless at trial maintains that they blacked out or don't remember with therefore be incompetent to be executed what we're doing something quite different here we know that mr madison's brain is damaged we can see it on an m r i we know that his cognitive disabilities have declined we know that he is not able to understand the things going on around him and we argued that because of that dementia which has very particular features he isn't competent to be executed the trial court found that because he's not insane because he's not psychotic there is no remedy in the law for him and he's on that basis that the trial court ruled against us now it's significant that in this court in the state argued below that incompetent to be executed can only be established where there's a showing of insanity delusion or psychosis in this court the state has taken a different position they now can see that dementia can be a base right all right and that's what's that's what strikes why this case strikes me as unusual the two questions you concede on one in the state concedes on the other while you're conceding that simply blacking out you don't remember the crime i don't know if that happens often or not you remember that everything else you do know the days of the month and all that but you just can't remember the crime you know that you're going to be executed because you committed a crime you don't remember if i understand you'd be saying that's not enough but then i also understand the state and we can ask them but i think it is in their brief to say that if in fact you meet the ford standards they don't care how you got there if you got there because you have to mentor you still meet the ford standard but that's a very different position than what we argue below because that was our argument is that we can meet the ford standards when you consider dimentia as a legitimate basis for rendering someone incompetent and none of the fact findings were made through that lens and i think on the first question what i'm arguing is that we recognize that it's too easy for any offender to say i don't remember defendants at trial often use defenses of i don't remember and doesn't preclude the state from trying them from convicting them from sentencing them it doesn't make them incompetent but when you have the kind of disorder that mr madison has and he has no ability to remember anything about the circumstances of the offense he cannot put himself in that situation then we argue that there is a legitimate basis for arguing that that person cannot rationally understand the circumstances of their execution and executing them would be inhumane and that you care you don't care how they get there if they get there because of insanity fine if they get there because of dementia or if they get there because they were hit on the head fine it's just look at the condition at the time that it's the severity of the disability and the reliability stevenson that's the point now let's just take a skin for the moment that the other side has conceded that severe dementia does qualify under ford internet yes and i do i'm going to ask the other side where the court addressed that issue because i don't see it they seem to be thinking that only delusions could qualify not incompetence but putting that aside for the moment how would i define severe dementia yes what's the difference between mild to venture moderate and severe yes and where with the fact finder settled in saying this person is incompetent or not income yes and that's where the medical community has helped us a lot but that science has as a merchant involved quite a bit under the d s m five there are requirements for moving someone from possible dementia which we would argue would not be sufficient to render someone incompetent to be executed just the allegation some limited memory deficit moving someone from possible dimension to probable dementia requires four things there needs to be an m r i where you can actually see a damage to the brain that's one of the things larry it's very easy it's very hard to be a lay person but i understand that one show up for alzheimer's for example well until someone has died and they can open up with some for for vascular dementia what we know is that you will see on an m r i i'm less worried about that because i am worried about something like that i just i'm just using the criteria that the medical community gives to us it has that we we have to be able to assert and prove substantial substantial cognitive decline which we could hear his i q has dropped dramatically his memory scores have dropped dramatically and with the five requires some of the ology something that we can point to that helps us understand the maturation of this disease early stage but late stage in here of course you had two life threatening strokes where he almost died and there were brain injuries he now has cerebral vascular disease that we can see so under those circumstances and i can see that there are going to be harder cases there could be harder cases but under these circumstances the evidence is quite dramatic there was no dispute that mr madison suffers from severe vascular dementia using the criteria that the medical community has given to us about these kinds of diseases which is why the states concession that dimension could be a basis is so significant what we want d to prove to the judge below is that dimension that has these features render someone incompetent the perfect example comes from the record mr madison can explain to you that he has a toilet in his cell is a five by eight cell he can explain to you that he can use that toilet but he were keenly urinates on himself and he gets frustrated because he's asking the guards to take him to the toilet he's not able to hold that memory of the location of the toilet next to his bed when it's time for him to urinate and so he continues to soil himself mr madison's obviously has serious problems serious physical problems mental problems but i'm quite confused by the arguments that you're making isn't it the case that  is order of april twenty ninth judge some have found that madison failed to prove by preponderance of the evidence that he does not rationally understand the punishment he is about to suffer and why he is about to suffer it what did he not make that finding and is that not supported by the testimony of the defense expert dr got no i don't think i don't think he made that finding that's a direct quote from his order what he did was actually cite dr kirkland testimony about that point dr karpf said gossip that mr madison can tell you what a murder is if you tell him that he can say he can tell you what the death penalty is he can tell you if you tell him you were convicted of this crime he can repeat that back to you but he has no independent knowledge of that and dr kirkland never testified that he had independent knowledge of what the court i don't think you're accurately representing what dr goffer testified but i don't want to argue about what the record shows and doesn't what doesn't show what dr gough was very clear about the point that he did not remember the crime he did not remember the big yes he did not he did not remember the crime he did not remember the victim which but he said he understands the sentence specifically the meaning of the death sentence he understands the meaning of execution and many details involved he's able to understand the nature of the proceedings he thinks she understands that what the state is seeking is his conviction was on just never went around killing folks well he didn't i think what he said was i don't have any i don't think this applies to me i never went around killing people he wasn't able to actually make a judgment about his conviction because that memory wasn't with him and that's just what this court dealt with in pinetti internet you had the same circumstance where you had someone who was a delusional but could tell you what murder is but this order was the order that came before us when this case was before us the last time is that not right  that's what you're now contesting you're contesting the order that was already before us that you chose not to contest on appeal in the air in the alabama courts well actually the orderly thing that's happened since then and what you've cited are the dementia to this circumstance and afford internet you will have to conclude that this man is not competent to be executed and what the trial court did on the argument of the state is say that we failed because we did not make a threshold showing of insanity we did not show incompetent in a way that does not permit the state consistent with the eighth amendment to carry out this execution and because dimension changes the interpretation of these facts as i watched as i was arguing you can tell i'm mr madison  that he was convicted and moby oh that this was the crime this was the circumstance he can hold onto that but the next day the next week he's not going to have that memory and that deprives him of the kind of rational understanding this court talked about his being critical pinetti can i ask can i give you two versions of your argument and you tell me which one you're arguing or maybe you can tell me that there's no difference between the two so one is just if you have severe dementia you  incompetent to be executed that simple the other is if you have severe dementia you are likely also to have a lack of rational understanding of the kind we talked about  mere proof of severe dementia alone would satisfy the it's a member because there are dementia sufferers whose long term memory is actually pretty secure pretty well intact they struggle mostly with short term memory and the nature of that struggle and my the allow them to hold on to these long term memories in a way that they would have a rational understanding of these circumstances i don't think this is an area where there can be that kind of clarity of category or offense that would allow this court to say those people are incompetent these people are not and that's what this court was dealing with in ford and pinetti then that i think that there are many many many prisoners on death row under threat of execution who are in their forty's fifty's sixty's seventy's possibly eighty's who have been there for twenty thirty forty years perhaps so this will become a more common problem the standard used in ford is the used word they often use is insane in primary the word they use he has no comprehension of why you has been singled out right if you were writing the standard for the situation i described what words would you use what's the sentence that you believe should be seen in the us reports in this morning but a problem that i think  general if i can just first contextualize that problem before giving that answer i mean i i don't think that the age of fender is a predictor of the scale of this phenomenon at least based on what we're talking about here and this was an issue that came up in fort where there was a real concern about the floodgates and we put a footnote in our brief about the internet how frequently competency to be executed competency to be executed claims or raise and it's actually relatively infrequent justice by ninety three percent of the thirteen hundred people who have gotten execution date over the last thirty years did not raise a competency to be executed plain even though many of them were older than mr madison mr madison's problems of our cerebral vascular which of course can happen at any age but i would think i take your point alzheimer's yes yes the mention of many kinds i take your are all sorts of things and so we could litigate each case case by case or the circumstances of their friends they are incompetent and there has been no reliable determination of rational understanding of the circumstances here because the court was unwilling to consider any evidence about that mental state that was outside the scope of insanity delusion or psychosis and we think as the eleventh circuit did when you accept dementia as a relevant basis for coming to that conclusion eleventh circuit had no difficulty finding that he's clearly incompetent even the dissenting judge starts is the scent mr madison was clearly incompetent when you bat when you went back to the trial court you emphasize the events concerning work w this is situation now dr kirkland has been suspended he is no longer a practicing psychology psychologist he is under threat of criminal prosecution and the grand jury refused to return a true bill for him they did at one point but he is still under investigation still suspended he's still under investigation by home by the state of alabama there are multiple counties involved in the circumstances that gave rise is and i only point with that justice and it was that we the court relied so heavily on this conclusion that we didn't think was supported by the record that we thought that it was relevant that dr kirkland's reliability be addressed but our broad point was that given what we know about dementia given that if you apply dementia to these facts and circumstances the trial court would have to conclude like the eleventh circuit did that mr madison was incompetent the state argued that you can't do that trial court you can only find incompetency if there psychosis or insanity or delusions and that was the bait on the trial court's rejection of our argument and i don't think it's too difficult to articulate this concept of incompetent see that relates to rational understanding orientation disorientation is a key factor and that's for me perhaps useful for court to articulate because in a lot of ways your inability to orient to time and place is going to undermine your ability to rationally understand what's convicted of a murder can be executed does not help resolve the question of whether this defendant has a rational understanding of his circumstances and the example that i use is a common one common problem you see in dementia when someone goes to see their mother and the mother doesn't recognise them it's heartbreaking it's devastating once you understand that the reason why they can't recognise you is dementia you have a different relationship to what that means you can say i'm your daughter and that person will respond to you as their daughter when you come back the next day they don't have a rational understanding of who you are and what the trial court and what the stat essentially if we can get the patient to say yes that's my daughter we can conclude that they have a rational understanding of their circumstances of their family and that's the tragedy of dementia you can't sustain that understanding and that's where the orientation to time and place becomes critical now there are other circumstances i just wanted to be clear that we're not contending that there should be an unworkable standard for states that someone saying i don't remember is sufficient i think here there was a very clear case no one disputes the severity of his mental and physical decline his disability she's legally blind now he can't speak without slurring his speech she's incontinent he can't walk without assistance everyone including the trial court observed that he is a very severely ill person have there been changes even since twenty sixteen is this continuing it is a degenerative disease and yes he continues to decline and of course the circumstances that he's in and add to that the client he's locked in a five by eight cell he's been in solitary confinement for thirty three years he is in pain there isn't the kind of medical care that he might otherwise get so there's no question  and dr golf was very clear about this in the a p s brief makes it clear that his condition will continue to degenerate and his ability to function will diminish as well but stephen says the court below believe similarity to the question of his reliability i think what do you think the trial court should have done in order to deal with that yeah well i think the primary difference is that dr kirkland in no way was willing to acknowledge dementia as relevant to his evaluation so his fact findings about what the patient remembers were made without any context or any understanding of dementia as relevant to that doctor got on the other hand said you cannot fin that mr madsen has any independent recollection of the crime the circumstances the events that led to his arrest dr god made the finding that he doesn't understand from day to day what's happening that he's disoriented because he's been willed and none of those findings were found by dr kirkland and valuation of course was that he would not be competent to be executed when you consider these medical facts and dr kirkland the trial judge nor the state ever acknowledged dementia as relevant to the determination which is why i don't think this court can find that that was a reliable determination i'd like to reserve the rest of my time for a bottle if there are no further questions thank you counsel is to go in mr chief justice and may it please the court this court granted search you already on two questions with respect to the first question concerning whether the state may execute an offender who does not remember committing the capital fans there's absolutely no ever objective evidence of a national consensus supporting such a role and mr madison does not offer any evidence to the contrary now on the second question presented can i start there it seems to me as i reading through some of the materials that you pointed to in your brief that under the common law there were different kinds of defenses to murder including lunacy i see one of your sources coal in the other hand talking about lunacy being a condition unlike in insanity which they defined as never being in touch with reality they define lunacy as being able to remember some things but not others and yet to a source the common law excuse lunatics so that if states are folding in dimension into lunacy into insanity into other sort of broader labels just like the common law good how can i rely on your statement that there's no consensus when i don't even know it that we have to get there because your adversary has said that he thinks this falls into fordham panetta because it's not to mention a quad dementia it's a certain kind of  mentia that doesn't put you in rational touch with you're decision making in your moment but putting that aside i'm taking on your starting proposition yes your honor for two points the first just to address the common law is that when we look back at the common law they were addressing something different where someone has completely lost his wits were talking about absolute madness you know they define lunacy as someone who could remember sometimes and not remember of half his with some time and not have his wits other times what we are the are our view of the common law and those sources we're talking about something different not remembering the offense would not fit into those categories of someone absolute madness or losing their wits and the second point don't think a demented person who today doesn't remember you as your son who doesn't know where he or she is who doesn't know to call to go to the bathroom in the pot right next to him you don't call that being out of your wits could be that maybe tomorrow they might for a few minutes remember but at the moment that they're having that episode are they within their wits you are we have not there could be against dementia exists on a spectrum so there's no doubt there could be some case where someone has dementia you are arguing that simply because somebody doesn't remember the crime that that doesn't help satisfy ford pinetti right correct you on what you've conceded that if the person meets the four tim pernetti standard by virtue of vascular dementia that he meets the ford infiniti standard right yes that yes if someone has vascular dementia or any other mental illness if that precludes them from having a rational understanding of their punishment and that they will die in their executed they would meet the for so many so i understand your friend to have conceded that simply not remembering the crime is not enough and you're arguing that if it's vascular dementia that effects you up to the point afforded pinetti that that is enough so are all we arguing about whether it is whether mr madison himself meets the ford pinetti standard but that's exactly right your honor and that's that the question that had it's it was already presented to the state trial court in two thousand and sixteen which this court reviewed those same facts occurred that was just a summary denial in the exact same case after this court summarily reversed the eleventh circuit the alabama supreme court set madison's execution date again and what mr madison did is he filed another petition of the same alabama statute that uses that term insanity that's why that term was used alleging the exact same evidence that he presented to the trial court the same trial court judge in two thousand and sixteen which had previously rejected that court held a hearing and twenty eighteen and essentially asked madison do you have anything else new to present to mr madison said no one on page twelve of that hearing transcript mr amounts of mr madison said we're obviously relying on the evidence that was previously before the court and so when the court was presented with that same evidence he said this court the supreme court has already said well is there ever a place where the court makes clear that it understands that insanity is not a cynic one that dimentia could do the trick in satisfying the forward pinetti standard there ever a place where the court says even though you know i understand that i'm not necessarily looking for delusions or schizophrenia or insanity and all the punishment that that's enough is there ever a place where the court makes clear that it knows that well yes several parts you are on page three and four of the court's order between sixteen ordered set out the panetta standard in full on page ten of the court's order i don't think that that does it i mean you can set out the pinetti standard the question is whether you understand the dimension can be the basis for satisfying the four tim pernetti standard absolute on a page six through eight of that court's order the chord if you're looking for delusions is that so irrelevant i'm listing the l evidence but that's irrelevant is there ever a place where the court makes it clear that that is relevant because it specifically said in its conclusion on page ten that won't belabor this but you can list all the evidence and think to yourself i'm listing all of the evidence but i find all of this evidence utterly irrelevant to the legal standard because i think delusions are required to satisfy fo i understand your honor and i guess the point is that the judge never made that final but there's no point in the judge's order where it said i hear this evidence from medicines expert but i can't consider it that that was never in the order the judge never said that that delusions were required and we can't tell that whether he thought that dementia could satisfy no that's not we're saying it all we're saying number one but he did consider all this evidence presented by d and number two there is not a single point that mannesmann point to where the trial court said i can't consider this evidence that just does not appear in the record but i think you would do you think that is what does state think about the standard which perhaps would be in addition to forder upand had it which was mentioned if the two and it's not exclusive but if two things are true one he does not recall his crime and second he has a severe inability to orient himself to time or place which means the kinds of things that were described yes i recognize you today tomorrow i can't not a clue not a clue where anything is though sometimes he answers the right questions that's what i mean by that but you heard the words so judging going back to the eighth amendment and using the ration for not the words and pin it is they were would you accept the fact that such a person cannot be executed under the eighth amendment and if not what's the difference you are  difference is that under for betty madison has an understanding of what matters you know i'm not saying i understand that the words i've just used are different than ford and pinetti but a person in that circumstance either can be executed or not that would be perhaps a new standard or a modification of ford infinity so i want to know if you think such a person can be executed and what your objection is to adding the words i just said as an additional standard if you like or a modification or interpretation of the existing standard if you prefer and the specific words that are the words are one he does not recall his crotch and two he has a severe in ability to orient mental ability is a severe inability to orient himself to time and place to take the first one your order not remembering the crime that would create an unworkable rule for the state ever to prove he's essentially would follow and that when he is nobody you mean that in me then yeah well that was the question we the principle question that we grant it but apparently it's fallen out of the case yet i think the reason it's fallen out is because there is such a clear lack of objective evidence that not isn't that that's not really my point we've all seen people in final stages of alzheimers or right think of such a person now is there any reason to execute that person w wouldn't execute the people in ford and pinetti you are because in this case the state would still have a strong interest in seek retribution for a horrible crime if someone even if they can't remember the crime that doesn't somehow lessen their bill i'm sorry we're mixing up the questions we understand your friend on the other side to say not remembering the crime is not enough right but if the person meets the standards  pernetti the fact that he got there through vascular dementia i understand you to say that doesn't make a difference that still qualifies yes yes right that that's near what's vascular dementia or any other type of mental illness that would just be the starting point and the state isn't going to say that it has never said all right in his opinion the men understood that this that he was in jail that the state was charging him with a crime that it was going to put him to death he believed they wouldn't because of his delusions ultimately succeed but he understood perfectly well that set of facts and we said that's still qualified so we have a man here who knows that he's incarcerated or kept in a cage because he's in a bed you can't move on his own can't remember with the bathroom is next to him can't  see slurs his words he's really not quite there but he knows that someone says he committed a murder and that they're trying to kill him but he doesn't understand why he can't be present enough in time to rationally understand or reflect on what he has done because he can't retain information for long and why is that different then pinetti in pernetti the man was blaming someone else which may be even worse for some people or saying that someone else is going to protect him but if you can't the problem was the inmates knew he was going to be executed but he didn't understand why he believe the reason was going to be executed was because it was a sham to get him from stop preaching there is no confusion for mr madison's perspective his own expert said but quote this is a page seven had his report he understands the senate specifically the meaning of a death sentence and he said quote but madison said the reason he was in prison was because of murder and that's the difference here in this particular case is that it will never can't understand or really follow through in his thinking what that means i mean he's just not rational in the way you and i understand it i certainly don't think of the mental person who has alzheimer's and is put in instance in an institution might happen moment of understanding one memory and i think that they are rational i certainly don't think you would let them buy an apartment in florida the way he told one of his lawyers he was going to do after this case ended we want to work with respect one on the things that matter he does understand that and we haven't talked about all the recommendation against death in madison's case yes your honor so suppose he had time to that the end of the trial and the condition determine whether those mitigating circumstances baghran circumstances outweigh the mitigators but i would say what matters here is is that scenario would not impact the states the constitutionality of seeking a death sentence or the prior to his second death sentence with which again nothing about mr madison's conditions impact the state's interest in seeking retribution for a heinous crime do you what is the significance i would have thought all we were concerned about his mental significant mental ability and understanding the various things blindness inability to walk none of that should is relevant under ford pinetti is that that's correct your honor that's great in fact to many talks about something similar to that that there could be other another category of inmates who as a result of honor and that that kind of mr madison's point on that is kind of missing i guess the point in our eyes can help diagnose vascular dimension we never disputed whether he has passed to a dimension or not but m r i is can't help determine whether someone has a rational understanding that's something that is inherently going to come from talking with a particular inmate in particular in this case where the dispositive fact that mr madison is relying on is that he can't remember the crime that's inherently something that only comes from the defendant and what he would have to admit that whether to a psychologist or in testimony and that can't be the rule because if that was the case no inmate would ever admit to committing the crime if that meant that he were incompetent but you've  prevailed on that point at least with respect to your adversary's view right yes your honor ok so i would have thought we can stop arguing about it but we we don't have to be don't have to accept the concession but the concern about the m r i evidence is that it would if i understand it tended to show something that is going to have a broader effect than just not remembering the facts of the crime there is is that not right crime that does it isn't going to have broader significance right that's correct but again in this in this case of course that the trial court did consider i just in this particular case did consider the fact that acquitted doctor's office was a progressive disease but the end of the day the court held that there was a rational understanding of just one when i also want to make in this particular case that the petition whether madison's position whether he's going to the first question or the second question would comes to the court and says to a trial court i have a suit i have this particular mental illness and therefore i meet the competency standard it would apply the exact same way it occurred here that they that they would consider that evidence and determine whether they have a rational understanding and that's what the  proceeding is the ability to assist with counsel and here that's what medicines expert said that he did understand what he hasn't able to understand the nature of the pending proceeding and he has an understanding of what he was trying for sonia and what if what they meant by that was you can you can make him understand what is going on today but then tomorrow he comes back and you have to do it on over again and then tomorrow the next day comes back and you have to do it all over again in other words he you can you can you can get him to understand something but then he loses it that's because that's the way memory works with people in this with this form of dementia what about  know that might be a closer question again that you would do or determine on the factual circumstances in front that particular core but again that that's not what we have here it was called mr madison said to both experts that he remembered that he had three separate trials that he was convicted of a death sentence to both experts he believed that he did not agree with the particular senate so that's not what we have here in this particular case because as this court noted before both experts testimony demonstrated he did have a rational understanding of his particular sentence in this case another point that was just me i just want to hearken back to the fact of that which talked about the original rule that madison in the first question presented is there just simply no objective evidence of a position supporting madison position in the first or second question presented no state legislature has determined that prohibits states of the thirty one states of the definitely has prohibited states from carrying out an execution for someone who has a mental illness or who cannot remember the particular facts of the crime the lower courts are uniform in that respect in addressing competency as well the texas brief points that out in regards to stand trial and we point out in our brief that of the three states that have addressed an issue similar to this they have all come down on alabama side that the simply having dementia and not remembering the facts of the crime does not prevent you per se from having a at least there was some objective evidence of a national consensus in that direction here there is no time and the consequences of such a rule would prevent the state from carrying out an execution on madison he would not can but you don't disagree that ford and p a read properly would not be limited to insanity delusion or severe to mention of course not that all those things are included in the neti and the good thing is that in here in this case the truck or did consider them and found that notwithstanding those conditions the fact that he had these strokes and memory loss he still had a rational understanding of well that's interesting to me because i don't read anywhere in kurt where'd he get any analysis of rationality what he did as i understood it is just as he remembers crime or something up he doesn't remember his crime but those guys it does he understand where he is and what they're going to do to him that's not the same as rational understanding he did no memory test to see how long mr madison retained information generally he did not describe the extent of his dementia he didn't do any of the things one would expect if he was going to opine od rationality evaluations which was for compensated stand trial was it's similar to the standard for competency to be executed as the texas brief points out and he did analyze the rational understanding and it would make sense again why  specifically inquire to whether an inmate would remember committing the crime because that is not determinative under ford and pinetti but in this case because madison does have a rational understanding that he's convicted of a crime of murder that he will be executed for that murder we would position there has been no point prior to this court with the state has acknowledged that dementia would be a basis on which a court could find someone incompetent to be executed their brief the post hearing brief that they filed after the hearing beg initially it must be noted that madison has failed to implicate ford or pernetti in this proceeding both the court appointed expert in the defense retained experts agree that madison does not suffer from psychosis or delusions that was the circle they drew around the evidence reconsideration dr kirkland after appearing in a doctor gas testimony said i agree with it but he can see that he expressed the state it that he doesn't believe it's relevant because of the barry narrow legal standard here and that very unequal narrow legal standard was given to him and to the court by the state as only including psychosis delusions and insanity at the eleventh circuit they made that argument and that's why the eleventh circuit made the judgment that if you consider dimentia you come to a different finding i just don't think it's credible to argue that the judge in this case considered dementia and made a determination that mr madison's dimentia does not leave him competent to be executed and to that extent we've never argued that this is a case about a categorical ban on executing people with a certain kind of condition but we've argued is that this court has held in for tim pernetti that it is unconstitutional to execute people who are incompetent and we've rooted that argument on with this court has acknowledged the court has said look the death penalty gives the state an credible power it's an awesome power the authority to execute someone who is not an immediate threat is an awesome and confused in the way that we have seen in the context of insanity in the context of other kinds of mental illness it is simply not humane to execute them and in that regard the eighth amendment here plays a different role than some of the other men the court always looks facts and circumstances through the lens of the constitution through the window of the constitution and we have that here but the eighth amendment isn't just a window it's a mirror and what the court has said is that our norms our values are implicated when we do things to really fragile really vulnerable people and what we've argued is that dimension in this case renders mr madison frail the will vulnerable in a way that cannot be reconciled with executing him because of his incompetency the state never acknowledged that argument is that big a ballot argument the court never made a finding about that argument and we believe that when you consider the facts of his dementia and this court holdings that are determination that executing someone and this condition cannot be reconciled with another member prohibition against cruel and unusual punishment and for that reason this awesome power that the state has requires obligations requires oversight and here the state didn't meet those obligations and oversight by making the informed determination that his dementia  does not leave him so incapacitated that he is competent competent to be they've never said anything about dimension and so i don't think this court can rely on the argument that somehow in this invisible record with no reference to dementia by the state by the expert or by the court that that determination has been found the only court to make a determination about the relevance of dementia here was the eleventh circuit and what they clearly found is that when you look at the level of despair and the level of confusion in the level of injury and mr chief justice you're right it's not just the physical symptoms it's not just that he's blind and can't walk and can't speak but those symptoms reinforce the credibility of the legitimacy the severity of his acute dementia and we don't believe this court ten consistent with the estimates prohibition against cruel and unusual punishment and now an execution of someone impaired in the way that mr madison is impaired or to allow any defendant to be declared competent to be executed with these kind of clear medically verifiable disorders and for that reason we would ask this court to reverse the lower court judgement thank you thank you counsel the case is submitted