good morning your honor sam robert bryan i am appearing on behalf of maurice keenan the appellant there are two generally large areas which are before this court today the first involves whether or not the  there were viable defenses even though no evidence was presented at the guilt phase and we have before this court a wealth of elements from experts and to doto evidence both at the time and since then that the defendant at the time of the homicide was in a reduced mental state there's also some evidence supporting what was then the standard of insanity in criminal cases this was a capital case tried here san francisco sti the council table in this courtroom he actually ended the call the table was hurling obscenities at everyone in the court including the superior court judge which van was just ranting and raving and was just totally out of his mind on another occasion the defendant went into court bearing in mind he and the state was seeking the death penalty which is eventually was successful with and he wanted to plead guilty over the advice of his then attorney and this was the previous attorney not the one issue before this court and it was an open ended play with no plea bargain whatsoever when the court started inquiring as to  understanding of the plea the nature of it his rights his his answers were really just nonsense and it became so bizarre that the trial judge finally gave up and rejected the guilty plea he also during that hearing stated that he was on drugs was consuming drugs in jail and it seems like with all respect to the judge at that hearing he was also parole rather than death on him when we went back to the lower court state court i was certainly happy with nevertheless the hearing actual evidence i think only lasted for court days your honor not counting argument his future pliant was guilty of murder that he was couple mold and he was an evil person so you're saying that competence was a very big issue but a lot of these witnesses just just in tonight here because it would have we from people who likewise saw all the defendant during that period that he had good days and bad days that it will that he wasn't of glittering it is one per person referred to in all the time that he he might go through four or five days when he'd be fine in seem pretty lucid other times he would be he was like a roller coaster he was getting drugs in jail we got that well documented this will be the evidence submitted by stipulation decorations not actually heard by judge ju n people who saw him at the time for example there was a jail nurse helen back alister and that's before this court record excerpt is number nine beginning on page one eighteen she said she daily when she worked in the jail some days he was fine they would talk to her fifteen minutes now this is during trial pretrial proceedings other times she would see him and she could not be engaged in conversation because he would just be out of contact with reality  be delusional he'd be she used the word disoriented she said it was obvious to her that he was getting drugs it was well known then that drugs were coming to the jail even through jalan ploys which i know would be surprising in san francisco but at least because he's on drugs well if you have somebody who already has a preexisting severe mental illness brain damage and all the underlining lying mental illnesses that he suffered from and if this person sitting in he was low on drugs it seems to me that one can of course i'm not commending the defendant for taking the drugs but i think the point is regardless of how he got that way if it reduced him to being mentally incompetent  at different points in the trial regardless of the reason then the trial becomes a walking constitutional flowing constitutional violation  throughout the trial there were other days when there were no notes and those were the bottom part of the roller coaster when it took a day up there were good days as a state and then there were bad days and again your honor we're not contending that eight that he knew the defendant had serious mental problems but he didn't want to present the evidence because it hurt his other client linda linda allen her say out there was some admissions made so the attorney knew and assuming the a trial judge the turning over the tell you were pending and in the end and his bizarre comments when he tried to plead guilty all that assuming that that was not enough to trigger inquiry by the judge even if it was not the the quality tourny him stay out the defense attorney had enough that he should have pursued the issue should have raised it which is just as he did not raise the issue of the defendant's raise any defense at the guilt phase even though it was there which is that which is not yet done that way before the court   and he said he could not say that the defendant was was mentally incompetent and and he was removed from the case he wasn't in the case that long i might i might add that  conflict waiver the attorney had a duty i mean i know he wanted to be appointed in the case because this was a capital case the other defendant was not capital and when he presented the waiver he should have and all to say look you want i want to be totally open aboveboard this man has serious mental illness he has problems he's been getting drugs that's even in the record in a previous hearing getting drugs in the jail and maybe just an abundance of caution he should be evaluated and looked at on the confidence the issue just to be sure this is a valid waiver that was never done and that's what creates the problem in this case is because of the conflict of this attorney he even admitted which is evidence before this court that that already attacked his new client or client to big and blaming everything on him and offending the first client it seems like an abundance of caution that attorneys should have really been over backwards with this knowledge that the district tenant had a lifelong history of mental illness rehearing in the district court in which the district court made a finding that the defendant was competent to stand trial that's a factual finding it cannot be reversed by this court in the absence of clear air by the district court and it's our position that there was no clear and fact that the abundant and overwhelming weight of the evidence showed that the defendant was at all times competent if he was at all times competent the trial court necessarily back to money as well both of those the credibility findings by the district court the district court believed them and argue that more than substantial evidence at that point waived the find a waiver of conflict form and presented that testimony in court if you look at it at the testimony that petitioners counsel says what shows diverse we don't think it shows deliberation it perhaps shows that  mr keenan was something of a manipulator playing games who knows what he was doing but that these are these are lucid responses in plain english and the court has those the defendant is writing in plain english he's lucid he clearly knows he's charged with at that time capital crimes he's even asking us attorney to do such things as well here's the clothes i want to wear or give me in my conservative blue suit that sort of thing this  his testimony the evidence for hearing it would see that dr benson interviewed mr keenan over a period of many months leading up to the trial and we don't have him going all the way back in one thousand nine hundred but we have him interviewing him over a period of many more than sufficient basis to conclude that mr mr cain was competent at all times and there's no basis to overturn the district court's finding in that regard but me just say one other thing declarations that the court also the district court also considered the declarations of the people that visited the defendant in jail or the the retrospective analyses by the several law mental health experts who  executed decorations ten years or so later after the fact the district court at the at the conclusion of the other entry hearing the district court agreed to take these into consideration we did not stipulate to their proofs in fact  even if one believed everything in their in those declarations at most they presented a conflict in the evidence the district court resolve that conflict against the petitioner did so on the basis of  dialogue with from the court when the defendant attempted to plead guilty the question was are you presently under the end effect of any drug or medication answer yes do you feel that in any way that has affected your ability to enter a free and voluntary plea to the charges answer i don't know if i'm qualified professional to say that but i don't think so if you think it's free and voluntary you know at another hearing the defendant when he was asked about medications was the on any medication this was on another occasion this is page thirty two of our opening brief and thirty three he made reference  to taking medication for epilepsy and that's also before the courts extensive evidence from people at the time and stuff that he had sleeves actually suffering from seizures and was on medication in addition to the other fourteen fifteen seventeen two of the letters st thirty three fifteen seventeen and fifteen sixteen seventeen he's writing to us attorney and he refers to having just who tried to kill him during the trial without bringing a gun into the courtroom excerpts thirteen and fourteen he's writing led to asking her to smuggle more drugs than is suggesting some very interesting ways for the next case on the calendar national association of homebuilders versus norton