good morning my name's p comic i represent david de lay and may please the court i'm here on a very ugly case seventeen  charges of basically sex trafficking with young ladies and we have a unique situation here i believe  engaged in the identical activities they lived together even got thirty six months it's the reason why i bring that up is because of the obvious mental illness history of mr de lay and the fact that it was never brought up at trial in terms of a diminished capacity defense actually wasn't brought up didn't judge churchill as nick in his sentence let me know during trial i thought the record was the church lands nick had him examined during a break in the trial and then when the he made for the record about well he seems lucid to me this was i think before he exclude him for a couple of days if i understand the record correct so when you say there was no evidence of mental impairment that the reason he had him examined no he fainted correct ok so you're saying it was a physical correct ok and what was actually what happened was and this is in the beginning of the i need medical assistance the court says tomb well you seem ok and he goes he basically at this point in time says i want to plead guilty if the jury out say nothing's wrong he insists he's he's dying basically he won't come back to court until he's promised baby food and ice disability although at that point the judge of even told him said look you know i called harborview when i called the detention center down in seat and they're saying there's nothing wrong with you but again he insisted there was so at least in counts of the seven king council leaks counts one through eight involve specific intent where diminished capacity could have been raised and to address the court's question on whether there was ever a mental evaluation does there was one done for competency in the beginning  bipolar diagnosis but no he has as yes yes and a noted history of bipolar disorder so it wasn't sounds like your argument is framed in terms of incompetence or inadequate counsel at trial and in failing to raise and press the diminished capacity defense is that correct that is the court is a asked to sue a spontaneous give instruction even if not asked for by the defense and so we're saying it's both we think the court had an obligation so i i'm trying to understand the argument because it didn't seem like you really made ineffective assistance of counsel argument in the brief but that sounds as judge hawkins says what you're doing is saying now but as i understand it you're saying and in light of all these things that you've talked about on the record the judge should have divined and on his own given a diminished capacity instruction i believe your honor he should have raised minimal these raise the topic with the defense counsel and i think as the defense counsel didn't see all the same things the judge saw no not only that but the judge they would go down when he would be kept in the courthouse but outside the presence of the jury in the record shows counsel go down and say you talk to our client into supposedly doing a film or a documentary where you're going to get twenty million dollars and he had signed contracts with he says did you tell them you had one hundred and fifty three million dollars to make basically he's basically getting on the stand and saying the stuff that's delusional but always been his position so certainly  certainly i think it was incumbent upon even the court to raise it with defense counsel mr condit he didn't see a board certified sircar psychiatrist or psychologist but he did see a medical doctor yeah during trial yes and the medical doctor while not a layperson like judges are he had no reason he or she the doctor had no reason to further evaluate the defendant does that is that the record but my understanding is he was not evaluated mentally period ok and only you're here on a plane or you're here on a plane or analysis ok are you yes ok and so it has to be air it has to be plane and it has to so impact the proceedings is to essentially bring the law into disrepute is that plane or analysis that i'm so it has to be so plain that the law is brought into this is my what if characterizing it disrespect the trial was not legitimate i mean that's what you're saying in a testimony if you if you go further and you look at the sentencing with mr de lay what he's saying there about how will be vindicated by the bible go to the media  again this is all all things that are delusional i think it's obvious and not always that obvious but a district court judge last thing made an adjustment downward because of his mental wellness and bipolar history are we losing here a little bit keeping our eye on the ball because the issue was his capacity at the time the crime was committed correct correct so i haven't seen any link between all the discussion we've been having  time and the link issue well your honor one is if you look at the conference evaluation that was done they think you can it's reasonable to infer that as a result he believes he could give people twenty million dollars for a documentary which is ridiculous that was  testimony a trial or we have we have cases that even say the fact that someone is mentally ill does not necessarily entitle them to a defense you still have to have this link between the ability to form the intent and the time of the crime and the defendant's status at that time right and that's seems to me be what's missing here is evidence of that link and simply being bipolar doesn't mean that you can't form the intent does it that's were ok honor i think it's more than you just asked me as well though you have to show an access i think jeff take it a step further with what's presented can you infer a nexus and this guy at the time during trial yeah you have to remember he's being treated for bipolar disorder and he's taking a number psyche dropping medications which are noted in the brief he stops taking  and once he starts taking them that's when all of this starts and that i believe couple with his his  boys performance a trial in his performance outside of trial he's consistently suffering from a mental illness if you take the delusional thinking as part of that and i think  your or explosive dysfunctional control from chronic drug abuse so i tried was a capital case at trial the they raised voluntary intoxication as the fence but left out the diminished capacity in this court reversed saying the jury needed to hear the diminished capacity defense that instruction and that he didn't get a fair trial because he didn't have that because you couldn't or you his theory of the case so therefore it was he didn't get a fair so that's that's our main argument on that point your honor the other one had to do with in particular there were other issues we raised but the instruction that was a no on pattern instruction where several paragraphs were loaded onto about how the jurors should consider  the the victim's point of view and there it's so loaded that now the court judge last night took out a couple paragraphs but a couple paragraphs were left in and it basically says you have to take  the victim's stance and everything about her to judge whether they were particularly vulnerable or not and we believe for the reasons are going our good morning maybe it's a court charlene kosky for the united states is there anything you've just heard argued that's not responded to in your brief i would just emphasize one point i think every point has responded to enter in our brief  but just to clarify one point mr delay's behavior at trial should not be confused with evidence the way someone behaves at trial and the jury did not even see this behavior it was all outside the view of the jury so just to be clear there was zero evidence of diminished capacity and i just wanted to make that clarification other than that no his arguments are addressed  extra time in your opening and there was nothing additional to respond to thank you both for the argument this morning