the next case for today is number two thousand and fourteen three zero one two nine carlos torrey versus candy col please the court both continued mental illness and continued dangerousness are required preconditions for the continued confinement of an insanity acquittal in this case the trial court used the term  standard of potential dangerousness a standard that was so all encompassing as to be meaningless and therefore a violation of clearly established constitutional law but even if the trial court had used a standard dangerousness that was consistent with due process it was an unreasonable determination of fact to find that mr poor right would have been dangerous if you were conditionally released to harmony house which is a secure locked supervised facility with regard to unreasonable determination of fact did you make that argument in the district court application for writ of and also  in your brief to dischord support of the application for the c e o a yes yes you're hardly both places for and reasonable determination of the facts we we went in detail an explanation of why the facts did not support the finding in the  supported the district court's holding and that report recommendation was adopted by the district court where did you make this in your brief to us in a clear independent fashion well your honor we went through and get in great detail discussing  why it is that the district courts recommend in the report a recommendation failed to establish that the trial court had provided ample or have had ample evidence or had reasonable evidence to to make the determination that she did and in the c e o a granted by this court the court also noted that both twenty to fifty four d one as well as twenty two fifty four d two were before the court your honor the clearly established law as a stablished by the united states supreme court in jones versus united states is that continued dangerousness and continued mental illness are required to justify by the state the continued confinement in this case the standard used by the trial court was potential dangerousness meaning the possibility of future dangerousness the possibility of future dangerousness you know your cook your client twenty years ago applied by judge purists contrary to supreme court law right that's the question here are my three problems saying that potential day just says is meaningless and indeed contrary want to think on right that in jones the supreme court itself used that phrase yes your honor it did in jones the court is when it's talking about what are the legitimate state interests and confining insanity equity the court was talking about that those are legitimate state interests include protection of the community as well as the treatment of the person who is mentally ill to use the phrase the purpose for it is to prove you know protect against potential dangers i agree with that you know that i did use that phrase but was not addressing what the basic standard of dangerous but it never has attacked a given a modifier i agree i agree that it has never had but it has very clear that it does require both dangerousness and mental that's true and it's titian is a position that i believe that the united states supreme court has allowed states to provide a variety of definitions of dangerousness and left it up to the states and in fact in louisiana there is a statutory provision and purist was obliged to follow that and you appealed all the way up saying he didn't  that standards article six fifty seven actually has modifier current of both what you're suggesting is true first supreme court long right under sixty seven it's got to be currently mentally ill and currently they said he must have implicitly he appeared to sixty seven which is a constitutional standard your honor you know we would i would just the pure disagree because they don't that these louisiana supreme court simply denied cert the four circuit simply did right but i've read your briefs it was all about this is inconsistent with jones and fuca and even more article six fifty seven your honor but i would say that in the court's ruling she made it very clear and and i the quote is he said that  the law says if a defendant still has a major mental illness and presents as a potential danger and and our position is that there the u s supreme court has made dangerousness the confines the contours of that of that standard up to left him up to the states supreme court but at a minimum the constitutional floor is that that condition must mean something true and that potential variance what's the law that says we can say a state court was ruling was contrary to supreme court law when we can't ourselves articulate what the supreme court law is you're just saying it's got to be more than what happened but it will be very unsatisfying for us to say you state court were contrary supreme court low when we can ourselves say what's the temporal limit i agree that this court and for petitioner to prevail it's not necessary for this court to identify what those contours are other than to say that there is a constitutional floor which is that it must be meaningful and you accept louisiana's law the doctors over time inching towards a consensus that they did have here and he then says i'm fearful that he might revert back if meds don't if he doesn't take his meds once he's out of harmony else why wouldn't that be a near future that  facility absolutely it is locked unsupervised going to be free that that that is exactly that is exactly the point that this is that you make that point and i'm not sure that it doesn't cut against you well the words legitimate state interest one of those legitimate stained interests is to treat mr poor as mental illness in the testimony in the record was very clear that the doctors all said that he has reached the maximum benefit treatment at the friends of cost little and that that's what john says is that most of that the legitimate reasons for keeping an insanity quicky it confined is must both goals must be met the goal of of treatment for the mentally ill and the goal of protecting community i would say he has a he has a right as a constitutional right to go to harmony house or to i'm saying that that is as the testimony discusses that is consistent with the best treatment provided in that there and more importantly that there's nothing to just curious because one of the brief said as poor a was questioned and so i am not sure i know that reference but but mr pore is mental illness has been in remission for a year and in all the tests found t contrary on that i'm you know there's some are that whether it's still really and mission i thought there was some evidence in the record or some statements on the cross examination dealing with it's inappropriate smiling in this and sort of thing that some people believe can be the onset of another episode and so could the district court of credited that as a possible risk that he's not fully in staying in remission and that that appropriately and laughing in a program that was information that had been imported from the previous hearing but when discussing it the doctor said that it's conceivable that that would have been although there was no testimony that between the two most recent hearings that there had been any inappropriate smiling or laughing but at best that's in addition of mental illness not in disha dangerousness has this report yet said that a judge cannot conclude that in sandy acquit he is a danger based solely on the original incident yes your honor i believe so in jones in jones and in considering the issue about whether or not the acts of the underlying offense were sufficient to warrant a finding of dangerousness for that initial commitment the jones court said yes but then it went on to say however in order to justify continued commitment its continued mental illness and continued dangerousness that is required  acquitted acquitted based on on the conclusion that and jones say they're no longer a danger do you know of a case that yet said those two cases compel that we release this person because he's not about earlier if you're going to be confined still in the harmony house and that's a big why it doesn't kind of cut against you in that what is the constitutional issue that and in fact that arguably petitioner is no longer dangerous and therefore that he would actually be eligible for constitutionally to be released however again that's not at this point what can what we released to the public from harmony found that if the if the court granted his conditional release the court can set a time period for that conditional release that would last five years she can set it for up to five years and then beyond that it can continue indefinitely at one read and to and that provides him with the supervision to ensure that he is compliant with his medications it's a flip the burden though because good cause to keep in there as opposed to he has to demonstrate that he's not dangerous what you see him saying i'm think that the new status may be flipped the bird except that you're on the burden is on the state and in louisiana statutory provision the burden is on the state to prove by clear and convincing evidence that he is both dangerous and mentally ill and continues to facility however your honor that is a transition facility and again i would refer back to jones which says the nature and extent of the confinement must be related to the legitimate state interest in continuing to confin uncertainty about what the word means in your favor then he ought to be released period but that's not that there's never been argued before but the state statutory provisions provide as this is the step down unit we will hear your argument warning or honest it please the court there are two questions before the court here the first is whether the state trial court's ruling is contrary to law clearly established by the supreme court petitioner argued that the state court erred asking whether he posed a potential risk of dangerousness as opposed to a current risk from the briefing and also from the argument that we have just heard from titian i think it's become clear that we're not talking about absolute dichotom because i agree your honor that is that's what i understand to be the petitioners argument that if you say the standard is potential dangerousness then you can't draw any meaningful distinctions because anyone and of empty of content in this context what i mean the drug the problem for me with your position is it's easy for you to say well they just set the standard is meaningless we'd all be dangerous but the bottom line is louisiana could only keep him committed if it did here to its own law and they're fair they're saying we accept that law right so the way this works under louisiana law and it's the only way to assess this for me is to look at the district th state courts conclusion she held to the court finds that potential danger to self and others has been proved by clear and convincing evidence by both the testimony and this court's legal opinion was there any testimony that found that he was clearly and convincingly a potenza will danger well there certainly was testimony that went to this point i was the ok let me start of a differently than did the state court did that the d a has to get notice and then the d a has day has to request confinement correct under sixty seventy do you have to say we'd like to keep the person confined i i believe that's how yes ok so then you get to the hearing and you have a burden to show by clear and convincing evidence person is a substantial risk of danger in the near future that your burden so my question to you is what evidence did you put on to show substantial danger in the near future your honor we did cross examine the witnesses so it was just cross examination i believe that's correct so you put on no evidence ok but what's the answer to cross examination that went to substantial risk of danger in the near future just quote me what any witness said in response to cross examination that would go to the louisiana standard well i don't have word for word quotations in front of me but i do recall judge all right i believe that as to earlier if there had been any testimony at this hearing in two thousand and eleven about inappropriate smiling and there were at least two instances of that two instances where witnesses did testify at least to the potential of appropriate so what we've got if we just apply louisiana law that no one disagrees is consistent with who can jones is the state saying that on cross examination they elicited that this man had inappropriate smiling do you have anything more than that well i think that that is a starting point i what's your i'm asking you for your best piece of evidence that was a listed to it here with reason a law that you i think agree judge purist must found applied right he had to apply six fifty seven the judge wasn't ok so he had to find substantial risk of danger in the near future and i'm just asking you where is the evidence anywhere in the record cross examination of near future risk of danger what's your best piece of heaven does it exist well i think that it is a matter of looking at considering risks considering the flip side of what i just asking you for a quote from the record you have one other than that the man smile yes or no right now ready to give to me probably to me the best evidence would be testimony from dr thompson about the petitioner smiling ok while discussing  in the ruling three times says the test i'm applying is one of potential dangerousness so here's my legal question for you are you familiar with the supreme court's ruling last this year in johnson and are on mark ruling in gonzales long where we address the aka residual clause and we the supreme court said using potenza the risk is indeterminate we don't know what the word potential means but our court in on bank said raise substantial risk of force isn't indeterminate so it seems to me that the word potential the supreme court has focused on something that has no meaning which is precisely their argument your honor to begin by just addressing your question i'm afraid that i'm not familiar with th particular case but i think that our response would be that you have to look at even when you're talking about the same word when it's looking when it's being applied applied in different contexts you have to consider the different contexts and one of the things that's really significant in my view about the supreme court presence in this area is that it doesn't in providing the standard mental illness and dangerousness for the second prong dangerousness it doesn't provide a  it's not using a term of art it doesn't provide as detail explanation of here is exactly what we mean it simply uses an every day term and i think that the implicit obvious implication of that is that it should be read in every day question with certainty but i think that in that situation and in this situation the question is a to me the petitioner is drawing a distinction that is really not based on anything that the supreme court has said and is really at odds with the everyday understanding of what we would mean when we say something is a potential danger a potential risk potential threat a problem here of the of it's a question of no evidence whether by alteration you way then it would be and it would have been we're going to release either certainly certainly not in the immediate future that i believe that's correct your honor so what's the constitutional argument that i'm not sure i'm not sure that there is one your honor and i think that that goes to the larger issue of the petitioner trying to draw distinctions that aren't no i mean i'm sure my problem with this case which you just heard is that the state court in my mind refused to apply clear and controlling state law and the da made no effort to meet its burden and therefore we've been presented with  case that's purely hypothetical saying well are we can articulate a rule that the supreme court has said potential dangerousness with residual concerns about the original crime is contras re import law to me if we say that that's a defacto life imprisonment i don't see when you wouldn't have a person that has an incurable mental illness that wouldn't be potentially dangerous of sort of reverting to whatever the person did thirty years ago so very frustrating that that no one seems to be defending what the law required louisiana that would not present of who could jones problem he didn't make those rulings i think the long way he and his peers had to make all these findings of fact and law in writing and he didn't even do that is that correct  right about that a six fifty seven you've got to make your findings of fact in law in writing i don't honestly i don't recall whether it's specifically requires but at the same time you've got a compelling point that especially if you are my concern on the other side which is the supreme court itself used that phrase potential dangerousness are we willing to say it's contrary to existing law but i think i think that's significant that the supreme court itself used that term in jones or it's the purpose of commitment is to treat the mental illness and protect the detainees and society from his potential dangerousness clearly in that context the supreme court did not understand the first word in that for let's not i same time the supreme court and our court have said that iniquity has to be released quote when he has recovered sandy everyone agrees with that or is no longer dangerous present tense is but again i think that this is there are cases if you look at a case like murdoch which we cite in our plea from the ninth circuit everyone seems to have agreed that ok this man is in custody he seems to be stabilized seems to be all right but the ninth circuit looked at the possibility and it seemed to be a significant possibility that once he was released from this very controlled structured environment that he would simply return to the same position mentally that he bit in it is or do you see the army twenty years ago the federal court said you can't incarcerate this man for life because he's insane but the position you're asking a stool is that he will be incarcerated for life because his original crime coupled with i don't know what makes him potentially dangerous to coupled with the fact he smiles and yet the same doctor described th said he's not a danger so it isn't me it means the man gets the very life sentence that twenty years ago judgment said he can't have well i think there are a number of differences just  it isn't binary right it is a binary right well i think the way i understand louisiana structure for civil commitment is not just either commitment or test charge the commentary to the wolves all say what we really favor fur and i think the phrase they use is presently non dangerous presently louisiana says that they get put into harmony houses the whole point is put in highly restrictive environments so again i'm back to louisiana got it right they got a constitutional they got a right it's just the da made no effort as far as we know i don't think in the record they didn't even see confinement law requires them to no evidence cross examination elicits a smile and now we're here saying that's clear world can i ask a question to follow up with that are we here to adjudicate whether or not louisiana law was followed and we don't do we have any jurisdiction to do that but your honor i believe that you have no mandate to review whether or not law was correctly applied here we have many mandate to adjudicate whether or not continued many mental health lock up for many many years or even for a life is is a good thing or a bad thing  i mean do we really have a do we don't have a need to catch do we don't have any authority did you get that either doing it's not clear to me that you do from the relevant supreme court president wright said the thing we have that we're here today about is whether or not saying the word potential when talking about once the person is released it for dangerousness is contrary to clearly established supreme court law is that correct that's the first issue is that right that's correct your honor and so in your and your position is that it's not because the supreme court uses that language itself and it's not otherwise told us that it's not contrary is that your position yes you second question i have is do you concede that there the other issue about a reasonable determination of the facts and light of the evidence presented is and is preserved and that is actually before us and if so how do you respond to that mike her recollection of the c e o is that the second issue that the c e o it was granted on was whether there had been an unreasonable application of the the relevant supreme court law and so i think that that is a question of your i i don't i don't think that that the issue was framed specifically that way that we get to look at the facts in terms of looking at whether there was an unreasonable application i think that that the petitioners have talked about generalizing making generalizations about mental illness and mentally ill there have been some concerns that have been voiced today about what are we under this or that standard what happens to anyone who is commit was committed by reason of insanity but as the trial court said in issuing her ruling this is not a normal case mr poor it is not a normal schizo phrenic there is it is as we pointed out in our brief and  is not attempted to refute this is extraordinary for any mentally ill person because the front of her otherwise to go out and wreak this level of violence the record reflect whether his ex wife is still alive because that triggered his outburst right that the original crime the jealousy for the ex wife that appears to be correct just the record reflect anything about whether any of his victims are still alive i don't recall seeing any indication of that your hon r was convicted and then only twenty years later on hay vs relief was and me the toughest question is judge l ron's clarification right at the end which is if you reduce this case to is it contrary to clearly established law is there any relevance to six fifty seven that bleeds into how we look at this case i think what this court is is mandated to do is to look at whether or not the state court bali mr parr is constitutional right and i think clearly whether or not it was a clear that you have an alleged and we don't have to see a way on whether there was a due process violation because it didn't follow it's a law that's not before us correct correct but but but still the constitutional issue is before this court and and and the c e o just checking does focus on also whether or not there was a reasonable determination of fact the other thing i wanted to clarify because there was some mention about whether or not the issue about mr corey's smiling and the smiling issue had been testified at the previous hearing the one in two thousand and nine it came up again because our the court or  someone had inquired of dr thompson and his his response was that he asked mr poor a about why he had smiled and appropriately at some point and he says well because it's been and this is at page one twenty five of the of the record it's been thirty years and you know knowing how i am now it's hard to believe that i was the kind of person that could do something like that and his discomfort at that again dr thompson refers to that the point being that everything there have been repeated review hearings in which the doctors have come in and both as fact witnesses as well as expert with says testified that mr pore a is not a danger and the court has routinely rejected those time and time again in this instance if she did disbelieve the judge's i mean somebody that the medical experts in the medical fact witnesses she did so without saying or making any reference in fact in her rulings her references only reference the underlying events of nearly forty years ago and the fact that mr pouri suffers from an incurable mental illness could there be some incident it was so so if they're an incident could i judge could be following the law and deciding the case on the facts and say this incident is just too highness and so therefore the potential or the current it's kind of an angel dancing on the head of a pin whether current is really potential because this instance gone as soon as we snap our fingers that it because of the incident and that  incident itself creates a severe enough risk is there is that is that ever constitutional in what case to ports that you're on i would say that is not as a matter of it may be practically true but it is not legally true and in fact in jones the court says whether it takes a whether the person is entitled to leave in a week after an offense or are never untitled is not is is something when jones was looking at the issue about whether or not the confinement could last longer than the sentence it was making clear that there is no predictive amount of time by which a court would which in a quick he would no longer be mentally ill or no longer be dangerous you can't use the incident itself could be so heinous like if the person had was a snoop a lawyer scientist and so they have the potential to do some sort of nuclear attack and they had fantasies about it twenty years ago and tried to institute such an attack the fact that they have been not being healthy in in confinement with that could you say oh no the risk is too high  current they still have the potential to efexor wait a nuclear attack and we don't know from one day to the next whether the medicine will be effective or you know we can't ever know for sure i think your honor as a matter of law  simply there's no legal sound legal doctrine that's been set by the united states supreme court that would allow that sort of defacto rule thank you thank you court will stand in recess until nine o'clock tomorrow morning thank you