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Understanding 9/11tv Madison v. Alabama CSPAN October 16, 2018 1:05pm-2:05pm EDT
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>> up next on c-span two come the supreme court oral argument in the case of an alabama death row inmate. some with severe dementia and long-term memory loss. the case of madison versus alabama. the justices will consider whether a state can execute someone who has no recollection of committing the crime and his mental capacity has declined significantly while in prison.
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>> the argument next day, case 177505, madison d. alabama. mr. stephenson. >> mr. chief justice, may it please the court. it undisputed premaster now sits on death row unable to fully orient the 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 and the borderline range but the memory scores 68 and the severe disabilities have rendered him bewildered and confused most of the time. mr. stephenson. >> a question for both sides but i'm having trouble with a firm grasp of exactly what issues are presented. tell me if i've got this right. there are two. the first one i went to a news to someone who doesn't remember the details of their crime, can
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he satisfy simply on that basis? he knows that capital punishment is getting us it's going to happen. he just doesn't remember what he did. the second one is whether or not vascular dementia can be a basis for a claim. in other words, he meets the standard but it's not caused by insanity. it's caused a dementia. am i right that those are two separate questions? >> are two related questions. i argued the first question is yes, memory loss with something else can render someone incompetent. and something else may not be dementia. that is someone who has a brain injury and is now impaired in a way that they have no memory of anything. it's not vascular dementia, could also be incompetent. someone who's actually in a coma. >> memory loss plus -- >> the examples that have come
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to mind would be that brain damaged the result of an injury in incapable of producing memories are creating the rational understanding the court has required. second example would be something like a coma. we would argue someone in a coma is not competent to be executed because their state of mind would not be reconcilable to what the court has held. >> support of the problem is use of the word loss of memory. 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 of society, would you be incompetent than to be executed? >> that's right. we do not contend. >> the cause of the loss of memory is. as a person could no longer
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function because they can't remember how to be. or how to think about a problem, it better. you would say the cause is not what's important. it is whether they are cognizant deficiencies to fill in the blank. >> that's right. causing disorientation from inability to understand circumstances have the kind of symptoms we have here. mr. madison can't say the season of the year pity cancer the month of the year, the date of the week. he can't recite the alphabet. >> understand to justice sotomayor's question. if a person simply has without memory of his commission at the capital offense, does that in itself render that person and competent to be executed? >> i think it could. the reason why i qualify it is
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because they are our circumstances i believe with what we've argued here. >> that's a question that calls for yes or no answer. the only thing that is lacking his memory of the commission of the capital offense. does that in itself render the person incompetent to be executed? >> you would render someone incompetent at the basis for that inability to remember his medical rather than something else. here what we've argued. >> you ask whether a person from a prisoner whose mental disability leaves him without memory of his commission of the capital offense. so do we take you now to be singing if you are lost without the capital offense, for some reason that doesn't have something to do with mental disability, that's not enough. but if there is rise to this lack of memory, then it is?
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>> i guess what i'm conceding as we are arguing saying i don't remember the time. you can't execute me. they impose punishment and execute these kinds of sentences with something more then i don't remember. >> i don't understand your answer. i can't think of a situation in which a person to back the offense without that being based on a mental condition. the definition of the mental condition. >> that is my point, justice alito. it would have to be accompanied in some mental disability and here we argue that disability was dementia. the reason 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. until you understand how that's possible. without something to look to.
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>> i'm not even sure if this happens after or whether there's any physiology behind this, but the idea of a kind of field state or black out unaccompanied by anything else, does that count as a kind of mental disability that you're talking about? >> no, it does not. we are not arguing someone competent to stand trial for murder nonetheless that trail maintains they blacked out or don't remember would therefore be incompetent to be executed. we are looking at something quite different. here we know that mr. madison's brain is damaged. we can see it on an mri. we know his cognitive ability have declined. he's not able to understand things going on around him and we argue because of that dementia which has very particular features i'm using competent to be executed. the trial court found that because he's not insane and
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because he's not psychotic, there is no remedy. it is on that base the trial court ruled against it. the state argued below in competency can only be established where they're showing others vanity, dilution or psychosis. in this court the state is taking a different position. they now concede dementia can be -- >> that is why this case strikes me as usual. you can see it on one in the state concedes on other. i don't know if that happens often or not. you do know the days of the month, but you can't remember the crime. you know you'll be executed because he committed a crime. i understand that is not enough. but then i also understand the state and we can ask them, but it is in their brief that if in
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fact you meet the standards, don't care how you got there. you still meet the standards. >> that's a very different position than what we argued below. that is their argument that we can meet the standards when you consider dementia as a legitimate basis for rendering someone incompetent. none of the fact findings were made through that lens. on the first question what i'm arguing is a recognized it is too easy for any defendant to say i don't remember. defendants at trial often use defenses of i don't remember. that precludes a state from tying them, convict demand, sentencing them. it doesn't make them incompetent. but when you have the kind of disorder that mr. madison has said he has no ability to remember anything about the circumstances of the offense come he cannot put himself in that situation. then we argue there is a legitimate basis for arguing a person cannot rationally understand the circumstances of their execution and executing them with the inhumane.
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>> you don't care how they get there. if they get there because of insanity fine, dementia. if they were hit in the head, fine. >> the severity of the disability. >> mr. stephenson, that's the point. that's a given for a moment that the other side has conceded that severe dementia does qualify. and 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 only dilutions could qualify, not incompetence. putting that aside for the moment, how would i define severe dementia? what is the difference between mild dementia, moderate and severe and where would the factfinders settle in saying this person is incompetent or not incompetent.
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>> and that's where the medical community has helped us a lot. under the size 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 dementia to probable dementia requires for things. there needs to be an mri or you can actually see the damage to the brain. >> it is very hard to be a layperson, but i understand that for alzheimer's for example. >> for vascular dementia, what we know is you will see on an mri. >> i am less worried about that because i am worried about something like alzheimer's. dementia is dementia. >> i'm just using the criteria the medical community gives to
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us. we have to be able to assert and prove substantial cognitive decline which we could hear. his i.q. has dropped dramatically. some ideology, something that can help us understand the maturation of this disease and not the early stage, but they stage. you're of course he has of course he has to life-threatening strokes where he almost died and never brain injuries. he now has cerebral vascular disease that we can see. under those circumstances and i can see there are going to be harder cases, could be harder cases, but under these circumstances the evidence is quite dramatic. no dispute that mr. madison suffers from severe vascular dementia, using criteria the medical community has given to us about these kinds of diseases, and which is why it is so significant. what we want to prove to the judge below is dementia when it
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has these features render someone incompetent in the perfect example comes from the record. mr. madison can explain to you that he has a toilet in his cell. it is defined by a cell. he explains to you that he can use that toilet, but he routinely on himself than he gets frustrated because he's asking the guards to take into the toilet. he's not able to hold that memory of the location of the toilet next to his bed when it time for him so he continues to soil himself. >> mr. madison obviously have serious problems, serious physical problems and mental problems. but i am quite confused by the argument you're making. isn't it the case that in his order at april 29th, judge smith found madison failed to prove by a preponderance of the evidence that he does not rationally and the punishment is about to suffer and why he's about to suffer it. did he not make that finding
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them is that not supported by the testimony of the defense expert? >> i don't think he made that finding. >> that's a direct quote from his order. >> what he did was right to kirkland testimony. mr. madison can tell you what a murderous if you tell him that. he can tell you what the death penalty is. 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. he never testifies he has independent knowledge. >> i don't think you're accurately representing what he testified that i don't want to argue about what the rest for shows and doesn't show. >> area clear about the point he did not remember the crime. >> he did not remember the crime. he did not remember the victim. he said he understands the system.
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he understands the meaning of execution and then he details involved. he's able to understand the nature of the proceedings. he thinks he understands what the state is seeking as retribution. he feels his conviction was unjust. he never went around killing folks. >> he was unable to actually make a judgment about his conviction because that memory wasn't with him. thus the court out within canady. the same circumstance where you have someone who is delusional but could tell you what it is. >> the order that came before us in the case was before is the last time. those which are not contesting. your contesting the order already before is that you chose not to contest on repeal in the alabama courts. the only thing that's happened since then and which is cited by the events concerning kirkwood.
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is that right? >> we've contended the court below should recognize with the 11th circuit recognized, which if you consider dementia and you probably know about dementia to the circumstance, you will have to conclude this man is not competent to be executed. with the trial court did on the argument of the state they say we failed because we did not make a threshold showing of insanity. we did not show in this case starts with our failure. he never suggested we could prove he's delusional. we argue his dementia renders him incompetent in a way that does not permit the state consistent with the eighth amendment to carry out this execution and because dementia changes the interpretation of these facts come as a arguing, you can tell mr. madison that he was convicted in mobile, just as the crime, this was the
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circumstance. he can hold onto that. but it's not going to have that memory and not surprised with a rational understanding the score talked about as being critical and ford and canady. >> can i give you two versions of your argument or maybe you can tell me there's no difference between the two. one is if you have severe dementia you are incompetent to be executed. that simple. the other is if you have severe dementia, you are likely also able to have a lack of rational understanding of its kind we talked about in canady. the dementia would be the physiological reason, but the standard would still be the canady standard. >> i think it is the latter. we are not arguing with your proof of dementia alone would satisfy the eighth dimension because there are sufferers
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whose long-term memory is pretty secured, they struggle and the nature of the struggle might allow them to hold onto these long-term memories and away they would have a rational understanding of the circumstance is. i don't think this is an area where there can be the kind of clarity that would allow this court to say this people are competent, these people are not. that's what this court was dealing with. >> i think that there are many, many prisoners on death row under threat who are in their 40s, 50s, 60s, 70s, possibly 80s to have dinner for 28, 3040 years perhaps. so this will be calm a more common problem. the standard used in ford, the word they often use is insane.
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in panetti, the words he uses he has no comprehension or why he's been singled out. if you're writing the standard for the situation i describe, what words would you choose? what is the sentence you believe should be seen in the u.s. report in this, that a problem i think is general. >> affect investors contextualize the problem before giving the answer. i don't think that the age of the offender is a predictor of scale of these based on what we're talking about here. this is an issue that came up were their real concerned about the floodgates. they put a footnote in our brief about the incidents, how competency to be executed claims are raised and it's actually relatively infrequent. 93% of the 1300 people who have gotten execution dates over the last 30 years did not raise the
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competency to be executed claims even though many were older than mr. madison's. cerebrovascular. >> alzheimer's? dementia of many kinds. all sorts of things. and so, we could litigate each case by case or you answer. >> i would argue that where someone has a disability that renders them incapable of orienting to time or place or rationally understanding the circumstances, they are incompetent and there has been a reliable determination of rational understanding of the circumstances here because the court was unwilling to consider any evidence about the mental state that was outside the scope of insanity, dilution or psychosis. we think is the 11th circuit
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did when you accept dementia is a relative basis for coming to that conclusion, no difficulty finding he's incompetent even though the dissenting judge starts his dissent, mr. madison is clearly incompetent. >> when you got one you went back to the trial court and emphasized the events in kirkwood girdwood is the situation now? >> dr. kirklin is ended, no longer practicing psychology. he's under threat of criminal prosecution. >> they did at one point, but he is still under investigation, still suspended. >> or the state of alabama. multiple counties involved. and the only point with that was that the court relied so heavily on this conclusion we didn't think was afforded by the record that we thought it was relative to dr. kirklin's reliability be
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addressed. but given what we know about dementia, given that if you ply dementia to these facts and does come the trial court would have to conclude like the 11th circuit did that mr. madison is incompetent. the state argued you state argued akin to the trial court. you can only find incompetent he or psychosis or insanity or dilution now is the basis on the rejection of her argument and i don't think it's too difficult to articulate this concept of incompetency that relates to rational wonders ending, disorientation as a key factor. that is for me perhaps useful to a court to articulate. in a lot of ways your inability to orienting time and place is going to undermine your ability to rationally understand what's going on. that's a fairly well-developed area of the medical profession.
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>> mr. stephenson, determination and that one, he knew that he was subject to execution by having killed a police officer. >> i would deal with at the same way the court did in panetti. the abstract understanding that someone convicted of a murder can be executed does not tell resolve the question of whether this defendant has a rational understanding of his circumstances. the example i use is a common one, a common problem you see in dementia when someone goes to see their mother and their mother doesn't wreck my son, is heartbreaking. it's devastating. once you understand the reason why they can't recognize you as dementia come 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
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understanding of who you are. but the trial court and with the state has argued is essential if we can get the patient to say guess that's my daughter, we can conclude they have a rational understanding of their circumstances of their family. that is the tragedy of dementia appeared you can't sustain that ending. that's where the orientation to time and place becomes critical. there are other circumstances. i just wanted to be clear that we are not contending that they should be enough workable standard for states, but someone saying i don't remember is sufficient. here there is a very clear case. no one disputes the severity of his mental and physical decline, his disability is coming is legally blind now. he can't speak without slurring his speech. he's incontinent. he can't walk without assistance. everyone including the trial court observed is a very severely ill person. >> have there been changes since 2016? is he continuing? >> it is a degenerative disease,
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yes. he continues to decline. of course the circumstances he then add to that the client. he is locked in a five by eight cell. he's been in solitary can i meant for 33 years. he is in pain. there is in the kind of medical care he might otherwise get so there's no question. very clear his condition will continue to degenerate and his ability to function will diminish as well. >> mr. stephenson, the court below believes dr. kurt when the valuations are very similar. do you agree with that assessment? if you don't, tell me how you really that lack of similarity to the question of his reliability. what do you think the trial court should done in order to deal with god?
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>> the primary difference is dr. kirklin in no way was willing to acknowledge dementia is relevant to his evaluation. so his fact findings about what the patient remembers were made without any context or understanding of dementia. dr. ross on the other hand said you cannot find he has any independent recollection of the crime, circumstances, even that led to his arrest that he made the finding he doesn't understand from day-to-day with pat ending that is disoriented, bewildered. and so,.her gobs of valuation was that he would not be competent to be executed when you consider these medical facts. dr. kirklin, the trial judge nor the state never mentioned dementias relevant to the determination, which is why i don't and this court can find it's a reliable determination. i'd like to reserve the rest of my time for rebuttal others have further questions. >> thank you, counsel.
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>> mr. chief justice, may it please the court. this court when a tertiary on two questions with respect to the first question concerning whether the state executed offender does not remember committing the capital sin. absolutely no objective evidence of a national consensus according such a role in mr. madison's not offer any to the contrary. the second question presented. >> can i start there? it seems to me has every been through some of the materials that you point to in your brief, but under the common mom, there were different kinds of defenses to murder, including lunacy. i see one of your sources talking about lunacy be in a condition unlike insanity, which they define as never been in touch with reality. they define lunacy has been able
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to remember some things, but not others. and yet, to a source the common law excused lunatics. so that its state daughter folding in dementia into lunacy, into insanity, into whether sort of broader labels just like the common wanted, how can i rely on your statement that there is no consensus? i don't even know that we have to get there because your adversary has said that he thinks his folds into ford and panetti because it's not dementia claude dementia appeared at a certain kind of dementia that doesn't put you in rational to with your decision-making in your moment. putting that aside taking on your proposition . spent the first is to address
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the common law. something different or someone has completely lost his wits. talking about absolute madness you >> they define lunacy is someone who can remember sometimes and that happens other times. >> our view of the common lawn and those sources were looking at something different. not remembering the offense would not fit into the categories of absolute madness are losing their weights. >> you 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 go to the bathroom in the caught 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
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remember. but at the moment they are having that episode, are they within their rights? >> again, dementia exist on a spectrum. there could be some case where someone has dementia or they could have lost her red, but that is not what we have here. >> it is my understanding. somebody doesn't remember the crime that doesn't help satisfy ford and panetti. but she conceded that if the person meets the ford and panetti standard of vascular dementia dating the standard, right? >> right, someone has vascular dementia or any other mental illness. it would die other executed.
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simply not remembering the crime is not enough. you are arguing if it's vascular dementia that affects you to the point of ford and panetti that it is enough. are we arguing whether mr. madison himself meets the standard? >> that's exactly right, your honor. the question is already presented to the court in 2016, which this court reviewed the same fax last year. must be insane. we have to explain the context that occurred. it's a denial in the exact same case. after this court summarily reversed, the alabama supreme court that madison's execution date again. but mr. madison did is filed another petition of the same
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alabama statute that uses the term insanity. that's why the term is used alleging the exact same evidence he presented to the trial court. the same which had previously did. that court held a hearing in 2018 and said you have anything else needed to present and he said no. on page 12 of that, mr. madison's dead we are obviously relying on the evidence previous day before the court. when he was presented with the same evidence, he said the supreme court is already said. >> was there a place where the court makes clear that it understands that insanity -- that dementia could do the trick and satisfying the ford govanpanetti standard. even though i understand that i'm not necessarily looking for dilutions for schizophrenia or in vanity or the ways that we
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saw it in ford and panetti, that if we saw somebody experiencing the kind of dementia that would prevent him from having a rational understanding of the crime and punishment, that that is enough. is there a place for the court makes clear that it knows that? >> several parts, your honor. on page three in four of the court's order it is set out the panetti standard. >> i don't think that does it. the question is whether you understand the dementia can be the basis for satisfying. >> absolutely. on page six through eight of that quarter, the trial court specifically outlined the testimony about that including the fact he had strokes, that because of those strokes he had memory loss that he had cognitive decline. >> if you are listing the evidence, what you might think of the court if you're looking
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for dilutions as that's all irrelevant. is there ever a place where the court makes it clear that is relevant? >> because it specifically said in this conclusion on page 10 that it was considering the testimony of dr. dawson made the final finding with justice alito points to that madison has a rational understanding is required by panetti that is executed. >> you see what i mean, mr. govan. you can list all the evidence and think to yourself and listing all the evidence but i find all this evidence utterly irrelevant to the legal standard because i think dilutions are required to satisfy ford and panetti. the point is the judge never made that finding. i hear this evidence from the expert but i can't consider it. that is never in the order. the judge never said i'm denying his competency petition because
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he doesn't have a dilution. best of my friend is argued below. >> we can't tell either way. is that what you're saying? we can't tell that the god delusion were required and we can't tell that whether he thought dementia could satisfy. the mac that is not what we're saying at all. number one he did consider all the evidence. number two, there's not a single point madison can point to reset i can't consider the evidence. that does not appear in the record. >> what does the state bank about the standard, which perhaps would be in addition to ford or panetti, which was mentioned. it's nonexclusive, but if two things are true, one company does not recall these crimes. and second, he has a severe
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inability to orient themselves to time or place, which means the kinds of things described. yes come i recognize you. not a clue where anything is, but sometimes the answers the right questions or that's what they mean by that. but you heard the words. so going back to the eighth amendment, using the rationale of ford, not the words, would you accept the fact that such a person cannot be executed under the eighth amendment? and if not, what is the difference? >> your honor, madison has an understanding of what hunters. >> i'm not saying i understand a word they just used are different than ford and panetti.
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but the person or the circumstance can either be executed or not. that would be perhaps a new standard dory modification of ford and panetti. i want to know if you think such a person can be executed in what your objection is to adding the words i just said is additional standard if you like or modification or interpretation of the existing standard if you prefer. >> the words are one, he does not recall his crime and two, he has a severe inability, and mental ability, severe inability to orient himself to time and place. >> will take the first one, your honor. not remembering the crime would make a rule to prove -- >> no one is arguing that, mr. stephenson made that clear.
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>> does the principal question that we granted in the case. >> your honor, the reason it's fallen out is because they're such a clear lack of objective evidence. >> that is not really my point. we've all seen people in final stages of alzheimer's think of such a person. is there any reason you execute that person when you wouldn't execute the people in ford and panetti? >> your honor, in this case the state would still have a strong interest in seeking richard duchenne for a horrible crime. even if they can't remember the crime, that doesn't somehow lessen their ability. >> we are mixing up the questions. we understand your friend on the other side to say not remembering the crime is not enough. but if the person you the standards of ford and panetti as stated in ford and panetti come to the he got there i understand
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you to say that doesn't make a difference. that still qualifies. >> yes, your honor. vascular dementia or any other type of mental illness to be the starting point. >> the state isn't going to say or has never said. >> the man understood that he was in jail, that the state was charging him with the crime, that it was going to put him to death. he believed they wouldn't because of his solutions ultimately succeed. but he understand understood perfectly well that set of facts. we said that still qualified him. so we have a man here who knows he's incarcerated were kept in a cage, can't move on his own, i can't see, slurs his words.
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he's really not quite there. but he knows someone that he committed a murder and that they're trying to kill him, but he doesn't understand why. he can't be president enough in time to rationally understand or reflect on what he has done because you can't retain information. and why is that different than panetti? the man was blaming someone else, which may be even worse for some people were saying that someone else is going to protect them. but if you can't rationally appreciate why you're been put to death >> seven to 90 he knew he was
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going to be -- he believes there is reason he was going to be executed there is no confusion, his own expert said this is on page seven i understand the sentence, the meaning of a death sentence and he said the reason he was in prison was because of murder. >> he can't understand or really follow through his thinking what that is. i mean, he's just not rational in the way you and i understand it. i certainly don't think a demented person who has alzheimer's and is put in an institution might have a moment of understanding one memory and i think that they're rational. i certainly don't think you would let them buy an apartment
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in florida for ways he told one of literacy was going to do after his descended. >> your honor, with respect on the things that matter he does understandably have attacked about about all the things he does recall both before and after the offense. he remembers he was to the multiple juvenile offenses and spent time in a youth detention facility. >> whether you think this is at all relevant, at this time of the conviction, over 30 years ago, madison was competent, no doubt about that. i think it was a case of a judge overwriting recommendations against us in madison's case. >> yes, your honor. >> so suppose he has come to the end of the trial, he is now
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can't see, can barely walk and all the conditions mr. stephenson brought out. is there any likelihood the jury would've recommended that person or that a judge would override the jury's recommendation for life rather than death. >> aggravating circumstance upgrade the meditators, but what matters here is the scenario would not impact the constitutionality with which again, nothing about mr. madison's condition inside the states interest in richard duchenne for a heinous crime. >> i mean, what is the significance? i would've thought all we were concerned about was mental significant, mental ability and
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understanding. there is things, blindness, inability to walk, none of that is relevant under ford and panetti. >> that is correct. in fact, panetti talks about something similar to that. another category of inmates as a result not mental illness that they were tulsa turned, they were callous, they blame other people for the crime. >> what is your opinion under the mri significance? >> mris can help diagnose vascular dementia. we never dispute whether he has vascular dementia or not. mri can't help determine whether someone has a rational understanding. that is something that is inherently going to come with talking a particular inmate come in this case where the dispositive fact that mr. madison is relying her lawn. this only comes from the
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defended and he would have to admit that whether in testimony. that can be the road because if that was the will come in would commit to the crime if that meant he were incompetent. >> you've already prevailed on that point at least with respect to your adversaries view. >> yes, your honor. >> i would've thought we could stop arguing about it. we don't have to accept the concession. the concerned about mri evidence is if i understand it tend to show something that will have a broader effect than just remembering the facts of the crime. is that not right? >> mri evidence can help. there's a suggestion as far as diagnosing, so that certainly can help with the fact determination by the trial court would make. >> there's no mri evidence that shows he doesn't remember the
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facts of the crime. >> that is correct. again, in this case, the trial court to consider in this particular case did consider the fact that it was a progressive disease, but at the end of the day the court held there was a rational understanding. >> what i also want to make in this particular case that a petition, whether going to the first question or the second question would be contrary to how competency determinations are done across the board at any level to stand trial, competency to see the way it feels. the above function the same way. it is not the fact that someone comes to the court and says three trial court i have this particular mental illness and therefore need to competency standard. it would apply the exact same way it occurred here, that they would consider that evidence and determine whether they have a rational understanding and that is that the trial court did
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here. >> you think if he came before the trial court on the question to stand trial with what his mental condition, orientation to time and place them and that he would've been competent to stand trial? >> is your honor, i do. he would have the rational understanding that the required, which is a rational understanding of the facts are the factual proceeding in the ability to assist with counsel. here are that is what madison's expert said, that he did understand, he's been able to understand the nature of the pending proceeding and an understanding of what he was tried for. >> what if what they meant by that one is you make him understand what is going on today. but then tomorrow he comes back and you have to do it all over again. the next day comes back and you have to do it all over again. in other words, you can get him
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to understand something and then he loses out. because that's the way memory works. what about that? >> your honor, that might read a closer question again to determine on the factual circumstances, but that is not what we have here. mr. madison said to both experts that he remembered he had three separate trials that he was convicted of a death sentence. to both experts he believed he did not agree with the particular sentence. that is not what we have here in this particular case. he did have a rational understanding in this case. another point i just want to hearken back to the fact we talked about the original rule that there's just simply no
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objective evidence of a position supporting madison position is either the first or second question represented. no state legislature has determined that prohibit states, 31 states from carrying out an execution for someone who has a mental illness or who cannot remember the facts of the crime. they are in addressing competency as well in the texas brief points out regard to competency to stand trial. we point out in her break the three states that have been issued similar to this, they've all come down on alabama side that simply having dementia and not remembering the facts of the crime does not prevent you per se from having a rational understanding. >> the final point i would just mention is unprecedented. this court has never created a categorical rule excluding someone from capital punishment or at least there was some object of evidence of a national
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consensus in that direction. here there was none of the consequences of such a rule would resent the state from carrying out an execution by madison. >> but you don't disagree forward and panetti read properly would not be limited to insanity, dilution or severe dementia. .. >> he remembers his crime or -- he doesn't remember his crime but does he understand where he is and what they will do to him?
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that is not the same as rational understanding. he didn't know memory test to see how long mr. madison retained information generally and he did not describe the extent of his dementia and he did not do any of the things one would expect if you were going to opine on rationality. so, the only one who did that was the doctor and that part of his discussion was not addressed by the court below it all. >> two points in response to that. we disagree on number one and he did set up a standard and is it was noted in hearing that particular doctor had done approximately 4000 competency evaluations which is similar to
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the standard for competency to be executed as the texas brief point out into the analyze the rational understanding. what make sense again why the doctor would not imply to whether an inmate with the member committing a crime because that is not determinative under ford and petty. in this case, medicine does have a rational understanding convicted of a crime of murder he will be executed for the murder we asked the court to affirm [inaudible] >> thank you, counsel for mr. stephenson you have four minutes remaining. thank you. i want to stress and look at the 11th circuit pleadings where the state took the exact opposite position and has been no point prior to this court where the state has acknowledged that dementia would be of based upon the court could find someone incompetent to be executed. the posthearing brief that they filed after the hearing begins initially it must be noted that madison has failed to indicate
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board or petty in this proceeding both the court of coded [inaudible] medicine does not suffer from psychosis or dilution and that was the circle they drew around the evidentiary consideration. doctor kirkland after hearing of his testimony that i agree with that but he expressly stated that he does not believe it is relevant because of the very narrow legal standard here in that very legal standard was given to him into the court by the state is only including psychosis, delusion and insanity. at the 11th circuit they made that argument in that fight the 11th circuit made the judgment that if you consider dementia you come to a different finding. i don't think it's credible to argue that the judge in this case consider dementia and made a determination that mr. madison's dementia does not leave incompetent to be executed into that extent we never argued that this is a case about a categorical man on executing
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people with a certain kind of condition but we argued that this court has held in ford and kennedy that it is unconstitutional to execute people who are incompetent and we rated that argument, this court has a knowledge. the deputy gives the state a credible power and it's an awesome power and the authority to execute someone who is not in the media but is absolute power. the power has to be utilized fairly, reliably and humanely. jurisprudence speaks to the humane part in what this court says is someone who is disabled in incompetent and fragile and bewildered in confused in the way we've seen in the context of insanity and context of other illness it is simply not humane to execute them. the eighth amendment here plays a different role in the other message and we always look up backs the length of the constitution through the way of the competition and we have that but the moment is not just a
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window but a mere. what they said is our norms and values are indicated but we do think it's fragile and vulnerable people and dementia, in this case, renders him frail, bewildered and vulnerable in a way that cannot be reconciled with executing him because of his and competency. state never acknowledges that is a valid argument in the court never made finding about that are meant and we believe we consider the facts of his dementia and this court's holding that the determination in this condition cannot be reconciled with an eighth amendment prohibition against cruel and unusual punishment. this awesome power of the state has requires operation and oversight in here the state do not meet those allegations by making the informed determination that his dementia does not leave him so incapacitated that he is incompetent and never said anything about dementia.
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i don't think this court to rely on the [inaudible] by the state, expert or court that that termination has been found that the only court and relevancy of the dementia with the 11th circuit and the committee found that look at the level of despair and confusion and level of injury and chief justice, you're right, it's not just physical sense or physical but spina can walk again speak but those symptoms reinforce the credibility and the legitimacy and the severity of his acute dementia. we don't believe this court consistent with the prohibition against cruel and unusual punishment allow execution of someone impaired in the way that mr. madison is impaired or to allow the defendant to be declared competency with these dramatically verifiable disorders. for that reason we ask the court to reverse. >> inky. the council case is omitted. >> mitt romney is right for senate in utah 2012 the public
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and presidential money recently discussed the trump administration in the future of the republican party. at the baker institute in houston. watch those marks at 8:00 p.m. eastern here on c-span2. following that the new hampshire democratic party inaugural roosevelt dinner, alec baldwin was keynote speaker and that is on c-span2 starting at 9:00 p.m. eastern. >> thursday morning we are featuring a gust of maine for the next hop on the c-span bus 50 capitals to her. ms. governor paula page will be a guest during washington journal starting at 9:45 easte 9:45 eastern. congress is in recess until the midterm election with pro forma sessions over the next three weeks. the house and senate reconvene on tuesday, november 13th. house will take up legislation funding the federal government after december 7 with current
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funding expires and the senate is scheduled to vote on those car programs and a nomination for the federal reserve board. the house is live on c-span and the senate is live here on c-span2. >> the season bus is traveling across the country on our 50 capitals to her. we recently stopped in plymouth, ohio and looking forward to the november midterm elections we are asking folks which parties to control congress and why? >> i believe that congress should remain in the public and hands after this next election. couple of reasons for this. possibly the largest one is it has been stated that if the democratic party takes control they will go out of their way to stymie any of the president's proposed legislation for good or ill and if we want anything to happen, any litigation path, i think we need the congress to stand by the president. even if it pushing some of his
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less thought out ideas. >> i want to see the democrats control the congress and senate. i think that it is long overdue to remove trump. he seems to be getting to mention the and it could get worse. he seems erratic and dangerous for our country. that's why want to see the democrats take over. >> voices from the state. part of c-span's 50 capitals were. >> homeland security secretary kirstjen nielsen and fbi director christopher wray and the acting director of the national counterterrorism center testified before the senate homeland security committee recently regarding security threats to the nation. wisconsin senator ron johnson chairs a committee. >> this hearing will come to order.
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