the st appeal for oral argument in that is joseph wallace versus superintendent of monoid sci eternity general mr sailor you want to go forward for the let's just see what we can agree upon please for purposes of setting the time frame or at least one of the here are we agreed that mr wallace did not in and do we agree that he asks for equitable tolling of a thirteen years and nine month period that would be until he actually filed  to what it is you contend for purposes of tolling is it that during that thirteen years a nine month period my previous question referred question he was unable that it was impossible for him that's the word you used to have filed for hey b s relief at any point in time so well what point in paranoia and delusion turn this over quickly to to my colleagues judge mckee and judge amber oh but i've i've reviewed the medical records and i assume that you considerable verity it's in mr wallace's reported j f during his period of incarceration and that in fact there were periods that he was tropics are for rather to treat symptoms and that in fact they were treated in such a way that on numerous occasions he was observed by professionals to be in remission too to be not have been lucid that that may be the weakest argument that we'll hear today that can't be true well i would say that in that time period is medication had been increased over a number of  they got the medications right they have a more broad inner active f x and that lasted i guess until two thousand and nine then there were some problems in two thousand he's not fully capable not fully competent and if he if he is on medication he's dulled and he's not fully competent that's pretty much of a catch twenty two at least for purposes of files in the interim is a clearly out of time pic repetition with the help of a person in prison that is than for being holding a job for a period of time if he was as the records demonstrate from time to time in partial remission doing pretty well if one point there was a suggestion in the record this is december eighteen of seven in full remission why couldn't he have somehow attempted to reach out to counsel since you are continually arguing that his use of fellow inmates expertise so to speak  counsel right and think he was competent to do that i can't let let let let let me focus on on a broader question here if i may and  what is it that you are seeking my understanding is that the appeal here is really the refusal of the district court  do and what did you tell the district court you would do if you were granted that relief if we were granted the equitable calling if you records show and the they show it it various points in time so what is it that retrospectively you would attempt to have some rd party who did not have contact with mr wallace at that point in time contribute to the question of reopening the record and reopening for what well when mr walsh presented  the time contemporaneous with the killing here right and i'm sorry that your people went in did he not have that condition was a not suffering from those very conditions back at the time of the killing of his wife yes he was and both doctors both doctors cook and set off have opined that his condition would not have met the mood gotten test don't they say that in their respective reports in having the commonwealth take the death penalty off the table or maybe the commonwealth decided that on its own and was successful in negotiating a plea down from murder one to murder three this was an experienced defense counsel wasn't it twenty seven years and the person in the office who handled all or most of the mental health cases is not with the record shows mental records of ninety eight i'm struggling i'm struggling as i have been in my since my st contact with this case is with the riddle in issue a putting aside the doubts that i concede i have most of whether this was newly discovered evidence because i remember just anecdotally from my real only eating back in the ninety's about news that ritalin could have an adverse effect on children with an existing medical condition or say he had a condition but again putting that aside what difference does the ritalin make here it's merely a causative agent and if it acts on mr wallace acted on mr wallace the way you're suggesting that it might have the manifestations were still the same you would still end up with the same expert report would you not discern the same expert opinion that is that he was severely mentally ill that he was psychotic that he was bipolar how does that change anything of argument if you could show that there was evidence that wasn't introduced that would have taken malice off the table out of the equation even though i went from and one down to and three will really should be looking at maybe manslaughter maybe something else  so doesn't that position necessarily require that somehow taking ritalin what exacerbate a preexisting psychosis in a manner somehow different and separate from an existing psychosis worsening because of some other cause again i don't understand how the causative agent has any impact here i the observations of the psychiatry hoost are based on as they were here and always are medical records that existed what the patient told the physician and the other information that is available to the physician about the patient what what changes just because he took ritalin and what did you offer to the district court in that regard to persuade the district court that you want to be able to pursue such an issue that i admittedly don't understand well mr wall who examine wallace fairly close to the event and we all know what the opinions are we also know that our jurisprudence is fairly deferential is deferential i should say to strategic decisions made by counsel now there was a strategic decision here to suggest mr was that he plead to murder three rather than go to trial where he would have had exposure to murder one why is that ineffectiveness on the part of counsel since he made the suggestion he did in fact the record is clear that at one point he was considering going to trial and then that changed is it the responsibility the responsibility of the docs here to thoroughly examine and inquire into medication if if the medication has any relevancy at all to the manifestations of that apparently led to the homicide  a failure to investigate any sort of link between the prescriptions you know the strategic under wigan's under strickland if there is no investigation at all the fact that he whether or not he was mentally capable of having mail us at the time he killed his wife looking at all the statements but i don't know how you get malice just my position malice out of the statements other than the very fact of killing itself which is prosecution witnesses were they they were not retained by the prosecution no by the yes they were defense witnesses and did either or both of them indicate that what they were saying about malice was malice in the legal sense or malice in a more gener know though and what defense counsel would have known in going about negotiations here is that the commonwealth did have an expert witness dr michael's right yeah that's right and dr michaels did  opine that mr wallace my opinion that mr wallace knew that the stabbing and other injuries that he had inflicted on his wife were wrong and would cause her death it is my understanding that malice is defined as and then he so he ultimately writes it is my opinion that mr wallace is killing of his wife was done with malice now at trial that could have been used to support a st degree murder conviction could it not so counsel had that in negotiating a plea here to murder three because the commonwealth the prosecution had an opinion and its pocket that could be presented for the purpose of showing malice whether believe dr michaels then your client could have been convicted of murder one which in this case would have required life imprisonment ye on certain issues of the actual motions not in the record by q he said that that was based on the malice that the two experts of the defense were not using the legal definition of malice and they should be precluded from  d trial so dr cook said that these drugs exasperated the condition but they did not affect his overall opinion as to the defendant's mental state and  argument here with how much time should be at war you told where i read the record is from two thousand to two thousand and nine defendant was considered a relatively stable and that his condition maybe started deteriorating a what does the record show if anything and i know this is an old record in fact i believe we don't even have the colloquy of the pleated vailable because of the age of the records more to the point because  portions of the record were just destroyed by the by the county along the way as early in an ordinary culling process unfortunately but does anything in the record demonstrate just whether and i'm crying about not only at the time of trial but but later the p c r ray that what defense counsel was looking to do was to argue an involuntary intoxication defense here or that that could have been available because of the ritalin information yes you argument is that when you look at the law of entire involuntary intoxication in pennsylvania it's an extremely limited defense well i was i was getting to that but i didn't want to ask you i ask you if there was anything in the record suggesting that that's the direction the case is favorably view that i'm not sure what they mean by that we do know that the supreme court of pennsylvania has not recognized such a difference your are the i that there was nothing in the record indicating that that was on anybody's radar to time and when you read all the intoxication and involuntary intoxication defense is most powerful through it will exist for this purpose when they're usually in  were telling me that you're not familiar with those so i mean we can go on but that does seem to be a very important part of the equitable tolling argument put up by the public federal public defender you it's been a used by a lot of district courts because it's the one thing that that's out there and it seems to be fairly uniform but we have not adopted i think what i was just trying to say if you had any thoughts as to help us  thinking with respect to the things that we should consider when we deal with the ball tolling in the case of mental illness i'm sorry your honor i just don't think i am qualified to speak on all that but i don't disagree that you should be you'd be your print you've been using so far as i was familiar with it at the time i wrote my brief unfortunately my memories alluding me right now  hearing for purposes of attempting to explain why there was not a more timely filing here or are you asking for an evidentiary hearing for purposes of demonstrating the mental condition of mr wallace back at the time the don't just come in mr saylor and say i want to have a daycare hearing give it to me i mean you have to have some purpose because the burden is going to be the burden of production here is going to be on you what is it of his condition and as a result of having taken ritalin do to help people here in terms of any defense that would be  versus a reaction from the medication taken by him back at the time around the time to killing what does that do for you that the manifestations remain the end so presumably the opinion is going to remain the same because it's based on what mr wallace told the doctors what they had observed when they talked with him the medical records that they themselves looked at what is it that twenty one years after the crime he used think can be produced here that's helpful i don't think we would command and tell the district court what it is you have based upon the universe of information and knowledge funchal logical wish with respect to riddle and that is available now doctor said off steaks explicitly on page four of his june nine two thousand report that psychiatry sed named dori middle who would prescribe for him he states she prescribed paxil and ritalin so it least as of june th two thousand and one of the experts early on in this case said had knowledge explicitly that mr wallace had had prescribed for him ritalin and this is after the period in the trial and i guess what they were saying based on those reports is at the time of the committing that they did not believe they could the elements  not so big so the bottom line of your argument has to be then that there would be expert opinion that would state that ritalin can lead to such an exaggeration