We'll hear argument next today in case 1775-05 Madison versus Alabama. Mr. Stevenson. Mr. Chief Justice, may it please the Court. It's undisputed that Vernon Madison now sits on Alabama's death row, unable to fully orient to 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 in the borderline range. He has a memory score of 58, and these severe disabilities have rendered him the willedred and confused most of the time. Mr. Stevenson, I have a question for both sides, but I'm having trouble with the firm grasp on exactly what issues are presented. Now, just tell me if I've got this right. There are two. The first one I would say is, does someone who doesn't remember the details of their crime, can he satisfy the Ford and Pinedi simply on that basis? He knows what capital punishment is, he knows what's going to happen, he just doesn't remember what he did. And the second one is whether or not vascular dementia can be a basis for a Ford claim. In other words, he meets the Ford standard, but it's not caused by insanity, it's called by cause by dementia. Now my right that those are two separate questions. I think there are two related questions, and the only, I think what we would argue is that the first question is that yes, memory loss with something else can render someone incompetent, and that something else may not be dementia. That is someone who has a brain injury and is now impaired in a way where they have no memory of anything. It's not vascular dementia could also be incompetent to be executed, someone who is actually in a coma. This right. So you say must be memory loss plus, what would the plus be? Well, the examples have come to mind would be the kind of brain damage that is a result of an injury where the brain is injured and incapable of actually producing memories or creating the kind of rational understanding that this court has required. The second example would be something like a coma, we would argue that someone who is in a coma is not competent to be executed because their state of mind would not be reconcilable to what this court has held in Fortin's and Edith. Ms. Stephenson, part of the problem is the use of the word loss of memory. And your briefs, 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 in society? Would you be incompetent then? No. To be executed. Yes, that's right
. We do not contend. So your loss of memory isn't even what the cause of the loss of memory is. If this person who has amnesia can no longer function because they can't even remember how to eat or how to go to the bathroom or how to think about a problem, et cetera, you would say the cause is not what's important. It's whether their cognitive deficiencies cause what, now fill in the blank. That's right. Well, it caused disorientation, cause and inability to understand their circumstances have the kind of symptoms that we have here. Mr. Madison can't tell you the season of the year. He can't tell you the month of the year. He can't tell you the day of the week. He can't recite the alphabet past G. He can't- I just want to understand your answer to the, to Justice Sotomayor's question. If a person simply is without memory of his commission of the capital offense, does that in itself render that person incompetent to be executed? I think it could, but I think the reason why I qualify it is because there aren't circumstances that I believe are consistent with what we've argued here. I think that's a question that calls for a yes or no answer. If the only thing that is lacking is memory of the commission of the capital offense, does that in itself render the person incompetent to be executed? I think it would render someone incompetent if the basis for that inability to remember is medical rather than something else. And here what we've argued is that we're- The person, the prisoner whose mental disability leaves him without memory of his commission of the capital offense. So do I take you now to be saying that if you are left without memory of the commission of the capital offense for some reason that doesn't have something to do with mental disability, that's not enough. But if there is mental disability that has given rise to the slack of memory, then it is? Well, I guess what I'm conceding Justice Kagan is that we're arguing that more is required than someone saying, I don't remember my crime, you can't execute me. The State has an interest in being able to impose punishment and to execute these kinds of sentences with something more than I don't remember. We've never argued that. I don't understand your answer. I don't. I can't think of a situation in which a person would lack memory of the commission of the offense without that being based on a mental condition. Well, that's correct. And that's- I guess- And that's- Well, that's my point, Justice Alita, we're arguing that it would have to be accompanied by a mental disability. And here we argue that that disability was dementia. And the reason why 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 for concluding that someone is incompetent to be executed until you understand how that's possible
. And that's the only point I'm making is that without something to look to- Right. I suppose what people are thinking of, and I'm not even sure if this happens ever, or whether there's any sort of physiology behind this. But the idea of a kind of fugue state or a blackout that's unaccompanied by anything else. Does that count as the kind of mental disability that you're talking about? No, it is not. It does not. We're not arguing that someone who is competent to stand trial, who nonetheless at trial maintains that they blacked out or don't remember, would therefore be incompetent to be executed. What we're arguing is something quite different. Here, we know that Mr. Madison's brain is damaged. We can see it on an MRI. We know that his cognitive disabilities have declined. We know that he is not able to understand the things going on around him. And we argued that because of that dementia, which has very particular features, he is incompetent to be executed. The trial court found that because he's not insane and because he's not psychotic, there is no remedy in the law for him. And it was on that basis that the trial court ruled against us. Now, it's significant that in this court, in the state argued below, that incompetency to be executed can only be established where there's a showing of insanity, delusion, or psychosis. In this court, the state has taken a different position. They now concede that dementia can be a basic homage. Yeah, and that's what strikes me as unusual. There are two questions. You concede on one and the state concedes on the other. Well, you're conceding that simply blacking out, you don't remember the crime. I don't know if that happens often or not. You remember everything else. You know the days of the month and all that. But you just can't remember the crime. You know that you're going to be executed because you committed a crime. You don't remember anything about it
. I understand you would be saying that's not enough. But then I also understand the state and we can ask them, but I think it is in their brief, to say that if in fact you meet the Ford standards, they don't care how you got there. If you got there because you have dementia, you still meet the Ford standards. Well, but that's a very different position than what we argue below. Because that was our argument, is that we can meet the Ford standards which when you consider dementia as a legitimate basis for rendering someone incompetent. And none of the fat findings were made through that lens. And I think on the first question, what I'm arguing is that we recognize that it's too easy for any offender to say, I don't remember. Defendants at trial often use defenses of, I don't remember. It doesn't preclude the state from trying them, from convicting them, from sentencing them. It doesn't make them incompetent. But when you have the kind of disorder that Mr. Madison has, and he has no ability to remember anything about the circumstances of the offense, he cannot quit himself in that situation, then we argue that there is a legitimate basis for arguing that that person cannot rationally understand the circumstances of their execution and executing them would be inhumane. And the person, you don't care how they get there. If they get there because of insanity, fine, if they get there because of dementia, if they get there because they were hit on the head and fine, it's just look at the condition at that time. That's the severity of the disability and the reliability of the death. It's just even since that's the point. Now, let's, let's take a skivin' for the moment that the other side has conceded that severe dementia does qualify under Ford and Pinnett. Yes. And I do, 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 that only delusions could qualify, not in competence. But putting that aside for the moment, how would I define severe dementia? What's the difference between mild dementia, moderate and severe? Yes. And where would the fact finders settle in saying this person is incompetent or not incompetent? Yes. And that's where the medical community has helped us a lot, that scientists has emerged and evolved quite a bit. Under the DSM-5, 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 deficits. Moving someone from possible dementia, the probable dementia requires four things. There needs to be an MRI where you can actually see a damage to the brain. That's one of the things I'm- It's very easy
. It's very hard to be a lay person, but I understand that won't show up for Alzheimer's, for example. Well, until someone's died and they can open up the brain. With some forms, but for vascular dementia, what we know is that you will see on an MRI. I'm less worried about that, because I am worried about something like Alzheimer's. That dementia is dementia. That's right. I'm just using the criteria that the medical community gives to us. It has that. We have to be able to assert and prove substantial cognitive decline, which we could hear. His IQ has dropped dramatically. His memory scores have dropped dramatically. And what the DSM-5 requires is some ideology, something that we can point to that helps us understand the maturation of this disease, so that it's not early stage, but late stage. And here, of course, you had two life-threatening strokes where he almost died and there were brain injuries. He now has cerebral vascular disease that we can see. So under those circumstances, and I can see that there are going to be harder cases. There could be harder cases, but under these circumstances, the evidence is quite dramatic. There was no dispute that Mr. Madison suffers from severe vascular dementia using the criteria that the medical community has given to us about these kinds of diseases, which is why the state's concession that dementia could be a basis is so significant. What we wanted to prove to the judge below is that dementia, when it has these features, render someone incompetent. And the perfect example comes from the record. Mr. Madison can explain to you that he has a toilet in his cell. It's a five-by-eight cell. He can explain to you that he can use that toilet. But he routinely urinates on himself, and he gets frustrated because he's asking the guards to take him to the toilet. He's not able to hold that memory of the location of the toilet next to his bed when it's time for him to urinate. And so he continues to soil himself. Mr
. Madison obviously has serious problems, serious physical problems and mental problems. But I am quite confused by the arguments that you're making. Isn't it the case that in his order of April 29th, Judge Smith found that Madison failed to prove by proponderance of the evidence that he does not rationally understand the punishment he is about to suffer and why he is about to suffer it? What did he not make that finding and is that not supported by the testimony of the defense expert, Dr. Goff? I don't think he made that finding. That's a direct quote from his order. Yes. What he did was actually cite Dr. Kirkland's testimony about that point. Dr. Goff said that Mr. Madison can tell you what a murder is if you tell him that. He can tell you what the death penalty is. He can tell you 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. And Dr. Kirkland never testified that he had independent knowledge. And what the court said? I don't think you're accurately representing what Dr. Goff testified, but I don't want to argue about what the record shows and doesn't show. Well, Dr. Goff was very clear about the point that he did not remember the crime. He did not remember the victim. Yes, he did not remember the crime. He did not remember the victim. But he said he understands the sentence, specifically the meaning of the death sentence. He understands the meaning of execution and many details involved. He is able to understand the nature of the proceedings. He thinks he understands that what the State is seeking is retribution. He feels his conviction was unjust
. He never went around killing folks. Well, he didn't, I think what he said was, I don't have any, I don't think this applies to me. I never went around killing people. He wasn't able to actually make a judgment about his conviction because that memory wasn't with him. And that's just what this court dealt with in Pinede. In Pinede, you had the same circumstance where you had someone who was a delusional, but could tell you what murder is. Could this order was the order that came before us when this case was before us the last time? Is that not right? Yes. And that's what you're now contesting. You're contesting the order that was already before us that you chose not to contest on appeal in the Alabama courts. Well, actually the only thing that's happened since then and what you've cited are the situ, the events concerning Kirkwood. Is that right? No, we've actually contended that the court below should now recognize what the 11th Circuit recognized, which is that if you consider dementia and you apply what we know about dementia to this circumstance and to Ford and Pinede, you will have to conclude that this man is not competent to be executed. And what the trial court did on the argument of the state is say that we failed because we did not make a threshold showing of insanity. We did not show delusions. The trial court's order in this case starts with our failure to show that he's delusional and ends with our failure to show that he's delusional. We never suggested that we could prove that he is delusional. What we argued is that 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, as I was arguing, you can tell Mr. Madison that he was convicted and mobile, that this was the crime, this was the circumstance, he can hold on to that. But the next day, then that's where he's not going to have that memory, and that deprives him of the kind of rational understanding. This court talked about as being critical in Ford and Pinede. Kagan, can I ask, can I give you two versions of your argument and you tell me which one you're arguing or maybe you can tell me that there's no difference between the two? So one is just, if you have severe dementia, you are incompetent to be executed. That's simple. The other is, if you have severe dementia, you are likely also to have a lack of rational understanding of the kind we talked about in Pinede. So in other words, the dementia would be the physiological reason, but the standard would still be the Pinede standard. I think it's the latter, Justice Kagan. We're not arguing that just the mere proof of severe dementia alone would satisfy the eighth amendment, because there are dementia sufferers whose long-term memory is actually pretty secure. It's pretty well intact. They struggle mostly with short-term memory, and the nature of that struggle might allow them to hold on to these long-term memories in a way that they would have a rational understanding of these circumstances
. I don't think this is an area where there can be the kind of clarity of category or offense that would allow this court to say those people are incompetent, these people are not. And that's what this court was dealing with in Pinede. What, then? I think that there are many, many, many prisoners on death row under threat of execution, who are in their 40s, 50s, 60s, 70s, possibly 80s, who have been there for 20, 30, 40 years perhaps. So this will become a more common problem. The standard used in Ford is the word they often use is insane, all right? In Pinede, the word they use, he has no comprehension of why he has been singled up, all right? If you are writing the standard for the situation I described, what words would you use? What's the sentence that you believe should be seen in the U.S. reports in this, what a problem that I think is general? Yeah. If I can just first contextualize that problem before giving that answer. I mean, I don't think that the age of the offender is a predictor of the scale of this phenomenon, at least based on what we're talking about here. And this was an issue that came up in Ford where there was a real concern about the floodgates, and we put a footnote in our brief about the incidents, how frequently competency to be executed, competency to be executed claims or raised. And it's actually relatively in frequent Justice Breyer, 93 percent of the 1,300 people who have gotten execution dates over the last 30 years did not raise a competency to be executed claim, even though many of them were older than Mr. Madison. Mr. Madison's problem is a cerebral vascular, which of course can happen at any age. But I would think. I'd take your point. Al-Timer's. Yes, yes. I'd take your point. I'd take your point. All sorts of things. And so we could litigate each case by case. Or you answer what I'm- Yes, that's right. The rule I would argue is that where someone has a disability that renders them incapable of orienting to time or place, or rationally understanding the circumstances of their offense, they are incompetent. And there has been no reliable determination of rational understanding of the circumstances here because the court was unwilling to consider any evident to bow bet mental state that was outside the scope of insanity, delusion, or psychosis. And we think, as the 11th Circuit did, when you accept dementia as a relevant basis for coming to that conclusion, the 11th Circuit had no difficulty finding that he's clearly incompetent, even the dissenting judge starts his descent. Mr. Madison is clearly incompetent
. When you went back to the trial court, you emphasized the events concerning Kirkwood. What is his situation now? Dr. Kirkland has been suspended. He is no longer practicing psychology. Psychologist, he is under threat of criminal prosecution. Did the grand jury refuse to return a true bill for him? They did at one point, but he is still under investigation, still suspended. He's still under investigation by whom? By the State of Alabama. There are multiple counties involved in the circumstances that gave rises. And our only point with that, Justice O'Lito, is that the court relied so heavily on this conclusion that we didn't think was supported by the record, that we thought that it was relevant that Dr. Kirkland's reliability be addressed. But our broad point was that given what we know about dementia, given that if you apply dementia to these facts and circumstances, the trial court would have to conclude like the 11th Circuit did that Mr. Madison is incompetent. The State argued that you can't do that trial court. You can only find incompetency if they're psychosis or insanity or delusions. And that was the basis on the trial court's rejection of our argument. And I don't think it's too difficult to articulate this concept of incompetency that relates to rational understanding, orientation, disorientation is a key factor. And that's, for me, perhaps useful for a court to articulate, because in a lot of ways, your inability to orient a time and place is going to undermine your ability to rationally understand what's going on. And that's a fairly well-developed area of the medical profession. It's what you do to students in the determination, what you do with the determination that one, he knew that he was subject to execution for having killed a police officer. I would deal with that the same way the court dealt with that in Pinede. The abstract understanding that someone who's convicted of a murder can be executed does not help resolve the question of whether this defendant has a rational understanding of his circumstance. And the example that I use is a common one, common problem you see in dementia, when someone goes to see their mother and the mother doesn't recognize them. It's heartbreaking. It's devastating. Once you understand that the reason why they can't recognize you is dementia. 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 understanding of who you are
. And what the trial court and what the state has argued is essentially, if we can get the patient to say yes, that's my daughter, we can conclude that they have a rational understanding of their circumstances, of their family. And that's the tragedy of dementia. You can't sustain that understanding. And that's where the orientation to time and place becomes critical. Now, there are other circumstances. I just wanted to be clear that we're not contending that this should be an unworkable standard for states, that someone saying I don't remember is sufficient. I think here there was a very clear case. No one disputes the severity of his mental and physical decline, his disabilities, he's 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 that he is a very severely ill person. Have there been changes even since 2016? Is this continuing? It is a degenerative disease and yes, he continues to decline. And of course, the circumstances that he's in add to that decline. He's locked in a five by eight cell. He's been in solitary confinement for 33 years. He is in pain. There isn't the kind of medical care that he might otherwise get. So there's no question. And Dr. Gough was very clear about this and the APA's brief makes us clear that his condition will continue to degenerate and his ability to function will diminish as well. But the point is that the court below believed that Dr. Kertlin and Gough's evaluations were essentially similar. Do you agree with that assessment if you do not agree with that assessment? No, I don't. Tell me how you relate that lack of similarity to the question of his reliability. And what do you think the trial court should have done in order to deal with that? Yeah. Well, I think the primary difference is that Dr. Kertlin in no way was willing to acknowledge dementia as relevant to his evaluation
. So his fat findings about what the patient remembers were made without any context or any understanding of dementia as relevant to that. Dr. Gough, on the other hand, said you cannot find that Mr. Madison has any independent recollection of the crime, the circumstances, the events that led to his arrest. Dr. Gough made the finding that he doesn't understand from day to day what's happening that he's disoriented, that he's bewildered. None of those findings were found by Dr. Kertlin. And so Dr. Gough's evaluation, of course, was that he would not be confident to be executed when you consider these medical facts. And Dr. Kertlin, the trial judge, nor the state ever acknowledged dementia as relevant to the determination, which is why I don't think this court can find that that was a reliable determination. I'd like to reserve the rest of my time for a rebuttal if there are no further questions. Thank you, counsel. Mr. Govin? Mr. Chief Justice, and may it please the court. This court granted search theory on two questions. With respect to the first question concerning whether the State may execute an offender who does not remember committing the Capitol offense, there is absolutely no objective evidence of a national consensus supporting such a rule, and Mr. Madison does not offer any evidence to the contrary. Now, on the second question presented. Can I start there? It seems to me as I've reading through some of the materials that you pointed to in your brief, that under the common law there were different kinds of defenses to murder, including lunacy. I see one of your sources, Cole, and the other, Hal, talking about lunacy being a condition unlike insanity, which they defined as never being in touch with reality. They defined lunacy as being able to remember some things, but not others. And yet, to a source, the common law excused lunatics so that if states are folding in dementia into lunacy, into insanity, into other sort of broader labels, just like the common law did, how can I rely on your statement that there's no consensus? I don't even know that we have to get there because your adversary has said that he thinks this folds into Ford and Panetta because it's not dementia, quad dementia. It's a certain kind of dementia that doesn't put you in rational touch with your decision making in your moment. But putting that aside, I'm taking on your starting proposition. Yes, Your Honor, for two points. The first just to address the common law is that when we look back at the common law, they were addressing something different where someone has completely lost his wits. We're talking about absolute madness. No, they define lunacy as someone who can remember sometimes and not remember, have his wits some time and not have his wits other times. We are view of the common law and those sources. We're talking about something different. Not remembering the offense would not fit into those categories of someone absolute madness or losing their wits. And the second point. Well, if 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 pot 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 remember. But at the moment that they're having that episode, are they within their wits? We have not, there could be, again, dementia exists on a spectrum. So there's no doubt there could be some case where someone has dementia where they could have lost their wits or meet the Ford and Pinede standard, but that's not what we have here. And that's- Well, but you- Is my understanding, I asked the same question I asked earlier, if the two questions accurate, you are arguing that simply because somebody doesn't remember the crime that that doesn't help satisfy Ford and Pinede, right? Correct, Your Honor. But you've conceded that if the person meets the Ford and Pinede standard by virtue of vascular dementia, that he meets the Ford and Pinede standard, right? Yes, so yes, if someone has vascular dementia or any other mental illness, if it precludes them from having a rational understanding of their punishment and that they will die when they're executed, they would meet the full medical committee. So I understand your friend who have conceded that simply not remembering the crime is not enough. And you're arguing that if it's vascular dementia that affects you up to the point of Ford and Pinede, that that is enough. So are all we arguing about whether- Is whether Mr. Madison himself meets the Ford and Pinede standard? That- That's exactly right, Your Honor. And that's- That the question that had- It was already presented to the State trial court in 2016, which this Court reviewed those same facts last year in Surveillance- The decision when I was reviewing said the Supreme Court said must be insane. This man isn't insane in case. Yes, Your Honor. But that doesn't change the scenario. And we have to explain the context that occurred. That was just a summary denial in the exact same case. After this Court, similarly reversed the 11th Circuit. The Alabama Supreme Court set Madison's execution date again. And what Mr. Madison did is he filed another petition of the same Alabama statute that uses that term insanity. That's why that term was used alleging the exact same evidence that he presented to the trial court
. The first just to address the common law is that when we look back at the common law, they were addressing something different where someone has completely lost his wits. We're talking about absolute madness. No, they define lunacy as someone who can remember sometimes and not remember, have his wits some time and not have his wits other times. We are view of the common law and those sources. We're talking about something different. Not remembering the offense would not fit into those categories of someone absolute madness or losing their wits. And the second point. Well, if 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 pot 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 remember. But at the moment that they're having that episode, are they within their wits? We have not, there could be, again, dementia exists on a spectrum. So there's no doubt there could be some case where someone has dementia where they could have lost their wits or meet the Ford and Pinede standard, but that's not what we have here. And that's- Well, but you- Is my understanding, I asked the same question I asked earlier, if the two questions accurate, you are arguing that simply because somebody doesn't remember the crime that that doesn't help satisfy Ford and Pinede, right? Correct, Your Honor. But you've conceded that if the person meets the Ford and Pinede standard by virtue of vascular dementia, that he meets the Ford and Pinede standard, right? Yes, so yes, if someone has vascular dementia or any other mental illness, if it precludes them from having a rational understanding of their punishment and that they will die when they're executed, they would meet the full medical committee. So I understand your friend who have conceded that simply not remembering the crime is not enough. And you're arguing that if it's vascular dementia that affects you up to the point of Ford and Pinede, that that is enough. So are all we arguing about whether- Is whether Mr. Madison himself meets the Ford and Pinede standard? That- That's exactly right, Your Honor. And that's- That the question that had- It was already presented to the State trial court in 2016, which this Court reviewed those same facts last year in Surveillance- The decision when I was reviewing said the Supreme Court said must be insane. This man isn't insane in case. Yes, Your Honor. But that doesn't change the scenario. And we have to explain the context that occurred. That was just a summary denial in the exact same case. After this Court, similarly reversed the 11th Circuit. The Alabama Supreme Court set Madison's execution date again. And what Mr. Madison did is he filed another petition of the same Alabama statute that uses that term insanity. That's why that term was used alleging the exact same evidence that he presented to the trial court. The same trial court judge in 2016, which had previously subjected. That court held a hearing in 2018 and essentially asked Madison, do you have anything else new to present? And Mr. Madison said no. On page 12 of that hearing transcript, Mr. Madison said, we are obviously relying on the evidence that was previously before the Court. And so when the Court was presented with that same evidence, he said, this Court, the Supreme Court has already said. Well, is there ever a place where the Court makes clear that it understands that insanity is not a synagogue known, that dementia could do the trick in satisfying the Ford Panetti standard. If there ever a place where the Court says, even though, you know, I understand that I'm not necessarily looking for delusions or schizophrenia or insanity in all the ways that we saw it in Ford and Panetti. That if I find somebody who's experiencing the kind of dementia that would prevent him from having a rational understanding of the crime and punishment, that that's enough. Is there ever a place where the Court makes clear that it knows that? Yes, several parts of your on page three and four of the Court's order, the 2016 order, it's set out the Pinede standard in full on page 10 of the Court's order. But I don't think that that does it. I mean, you can set out the Pinede standard. The question is whether you understand that dementia can be the basis for satisfying the Ford and Pinede standard. Absolutely. On a page six through eight of that Court's order, the trial court specifically outlined Dr. Gough's testimony about that, including the fact that he had had strokes, that because of those strokes, he had a loss in memory loss that he had cognitive decline. He can see it. Right. But if you're just listing that evidence, what you might think is a court, if you're looking for delusions, is that's all irrelevant. I'm listing the evidence, but that's irrelevant. Is there ever a place where the Court makes it clear that that is relevant? Because it specifically said in its conclusion on page 10 that it was considering all the testimony of Dr. Gough, and then eventually made the final finding, which Justice Leito pointed to, that, quote, Madison has a rational understanding as required by Pinede that he is going to be executed. And it's important also to note that there is a- But do you see what I mean, Mr. Gov. And I won't belabor this. But you can list all the evidence and think to yourself, I'm listing all the evidence, but I find all this evidence utterly irrelevant to the legal standard, because I think delusions are required to satisfy Ford and Pinede. What, I understand, Your Honor, I guess the point is that the judge never made that funny. There's no point in the judge's order where it said, I hear this evidence from Madison's expert, but I can't consider it
. The same trial court judge in 2016, which had previously subjected. That court held a hearing in 2018 and essentially asked Madison, do you have anything else new to present? And Mr. Madison said no. On page 12 of that hearing transcript, Mr. Madison said, we are obviously relying on the evidence that was previously before the Court. And so when the Court was presented with that same evidence, he said, this Court, the Supreme Court has already said. Well, is there ever a place where the Court makes clear that it understands that insanity is not a synagogue known, that dementia could do the trick in satisfying the Ford Panetti standard. If there ever a place where the Court says, even though, you know, I understand that I'm not necessarily looking for delusions or schizophrenia or insanity in all the ways that we saw it in Ford and Panetti. That if I find somebody who's experiencing the kind of dementia that would prevent him from having a rational understanding of the crime and punishment, that that's enough. Is there ever a place where the Court makes clear that it knows that? Yes, several parts of your on page three and four of the Court's order, the 2016 order, it's set out the Pinede standard in full on page 10 of the Court's order. But I don't think that that does it. I mean, you can set out the Pinede standard. The question is whether you understand that dementia can be the basis for satisfying the Ford and Pinede standard. Absolutely. On a page six through eight of that Court's order, the trial court specifically outlined Dr. Gough's testimony about that, including the fact that he had had strokes, that because of those strokes, he had a loss in memory loss that he had cognitive decline. He can see it. Right. But if you're just listing that evidence, what you might think is a court, if you're looking for delusions, is that's all irrelevant. I'm listing the evidence, but that's irrelevant. Is there ever a place where the Court makes it clear that that is relevant? Because it specifically said in its conclusion on page 10 that it was considering all the testimony of Dr. Gough, and then eventually made the final finding, which Justice Leito pointed to, that, quote, Madison has a rational understanding as required by Pinede that he is going to be executed. And it's important also to note that there is a- But do you see what I mean, Mr. Gov. And I won't belabor this. But you can list all the evidence and think to yourself, I'm listing all the evidence, but I find all this evidence utterly irrelevant to the legal standard, because I think delusions are required to satisfy Ford and Pinede. What, I understand, Your Honor, I guess the point is that the judge never made that funny. There's no point in the judge's order where it said, I hear this evidence from Madison's expert, but I can't consider it. That it was never in the order. The judge never said that I'm denying his competency petition because he doesn't have a delusion. That's what my friend is arki below, but that's not- Sotomayor. Because what you're saying is either way. We can't tell either way. Whether, is that what you're saying? We can't tell that he thought that delusions were required and we can't tell that whether he thought that dementia could satisfy. No, that's not what we're saying at all. We're saying number one that he did consider all this evidence presented by Dr. Gov. And number two, there's not a single point that Madison point to where the Trockort said, I can't consider this evidence. That just does not appear in the record. But we do what do you think? That is, what does the State think about the standard, which perhaps would be an addition to Ford or Panetta, which was mentioned, if the two- and it's not exclusive, but if two things are true, one, he does not recall his crime. And second, he has a severe inability to orient himself to time or place, which means the kinds of things that were described. Yes, I recognize you today, tomorrow I can't, not a clue. Not a clue where anything is, though sometimes he answers the right questions. That's what I mean by that. But you heard the words. So judging going back to the Eighth Amendment and using the rationale of Ford, not the words and Panetta, is there a, would you accept the fact that such a person cannot be executed under the Eighth Amendment? And if not, what's the difference? The other difference is that under Fort Panetta, Madison has an understanding of what matters. You know, I'm not saying I understand that the words I've just used are different than Ford and Panetta, but a person in that circumstance either can be executed or not. That would be perhaps a new standard or a modification of Ford and Panetta. So I want to know if you think such a person can be executed and what your objection is to adding the words I just said as an additional standard if you like or a modification or interpretation of the existing standard if you prefer. And the specific words that they, the words are one, he does not recall his crime. And, too, he has a severe inability to orient mental ability as a severe inability to orient himself to time and place. Well, I'll take the first one, Your Honor, not remembering the crime. That would create an unworkable rule for the State ever to prove. He's essentially would follow. And nobody is, nobody is arguing that in this case, Mr. Stevens, and made that clear
. That it was never in the order. The judge never said that I'm denying his competency petition because he doesn't have a delusion. That's what my friend is arki below, but that's not- Sotomayor. Because what you're saying is either way. We can't tell either way. Whether, is that what you're saying? We can't tell that he thought that delusions were required and we can't tell that whether he thought that dementia could satisfy. No, that's not what we're saying at all. We're saying number one that he did consider all this evidence presented by Dr. Gov. And number two, there's not a single point that Madison point to where the Trockort said, I can't consider this evidence. That just does not appear in the record. But we do what do you think? That is, what does the State think about the standard, which perhaps would be an addition to Ford or Panetta, which was mentioned, if the two- and it's not exclusive, but if two things are true, one, he does not recall his crime. And second, he has a severe inability to orient himself to time or place, which means the kinds of things that were described. Yes, I recognize you today, tomorrow I can't, not a clue. Not a clue where anything is, though sometimes he answers the right questions. That's what I mean by that. But you heard the words. So judging going back to the Eighth Amendment and using the rationale of Ford, not the words and Panetta, is there a, would you accept the fact that such a person cannot be executed under the Eighth Amendment? And if not, what's the difference? The other difference is that under Fort Panetta, Madison has an understanding of what matters. You know, I'm not saying I understand that the words I've just used are different than Ford and Panetta, but a person in that circumstance either can be executed or not. That would be perhaps a new standard or a modification of Ford and Panetta. So I want to know if you think such a person can be executed and what your objection is to adding the words I just said as an additional standard if you like or a modification or interpretation of the existing standard if you prefer. And the specific words that they, the words are one, he does not recall his crime. And, too, he has a severe inability to orient mental ability as a severe inability to orient himself to time and place. Well, I'll take the first one, Your Honor, not remembering the crime. That would create an unworkable rule for the State ever to prove. He's essentially would follow. And nobody is, nobody is arguing that in this case, Mr. Stevens, and made that clear. Well, that was the question, the principal question that we granted, but apparently it's fallen out of the case. Your Honor, I think the reason it's fallen out is because there's such a clear lack of objective evidence. That is not really my point. We've all seen people in final stages of Alzheimer's. All right. Think of such a person. Now, is there any reason to execute that person when you wouldn't execute the people in Ford and Pinede? Kagan, you honor, because in this case, the State would still have a strong interest in seeking retribution for a horrible crime. If someone, even if they can't remember the crime, that doesn't somehow lessen their ability to run away. We're mixing up the questions. We understand your friend on the other side to say, not remembering the crime is not enough, right? But if the person meets the standards of Ford and Pinede, as stated in Ford and Pinede, the fact that he got there through vascular dementia, I understand you to say that doesn't make a difference. That still qualifies. Yes, Your Honor. Now, that's near what's vascular dementia or any other type of mental illness. That would just be the starting point. And the State isn't going to say that, and has never said that. All right. In Pinede, the man understood that the, that he was in jail, that the State was charging him with a crime, that it was going to put him to death. He believed they wouldn't because of his delusions ultimately succeed, but he understood perfectly well that set of facts. And we said, that's still qualified him. So we have a man here who knows that he's incarcerated or kept in a cage because he's in a bed. He can't move on his own. He can't remember what the bathroom is next to him. Can't see. Slur his words. He's really not quite there. But he knows that someone says he committed a murder and that they're trying to kill him. But he doesn't understand why. He can't be present enough in time to rashly understand or reflect on what he has done because he can't retain information for long
. Well, that was the question, the principal question that we granted, but apparently it's fallen out of the case. Your Honor, I think the reason it's fallen out is because there's such a clear lack of objective evidence. That is not really my point. We've all seen people in final stages of Alzheimer's. All right. Think of such a person. Now, is there any reason to execute that person when you wouldn't execute the people in Ford and Pinede? Kagan, you honor, because in this case, the State would still have a strong interest in seeking retribution for a horrible crime. If someone, even if they can't remember the crime, that doesn't somehow lessen their ability to run away. We're mixing up the questions. We understand your friend on the other side to say, not remembering the crime is not enough, right? But if the person meets the standards of Ford and Pinede, as stated in Ford and Pinede, the fact that he got there through vascular dementia, I understand you to say that doesn't make a difference. That still qualifies. Yes, Your Honor. Now, that's near what's vascular dementia or any other type of mental illness. That would just be the starting point. And the State isn't going to say that, and has never said that. All right. In Pinede, the man understood that the, that he was in jail, that the State was charging him with a crime, that it was going to put him to death. He believed they wouldn't because of his delusions ultimately succeed, but he understood perfectly well that set of facts. And we said, that's still qualified him. So we have a man here who knows that he's incarcerated or kept in a cage because he's in a bed. He can't move on his own. He can't remember what the bathroom is next to him. Can't see. Slur his words. He's really not quite there. But he knows that someone says he committed a murder and that they're trying to kill him. But he doesn't understand why. He can't be present enough in time to rashly understand or reflect on what he has done because he can't retain information for long. And why is that different than Pinede? In Pinede, the man was blaming someone else, which may be even worse for some people, or saying that someone else is going to protect him. But if you can't rationally appreciate why you're putting being put to death, how does that fulfill the Pinede standard? Sotomayor, because this case is different than the facts of Pinede. So in Pinede, the problem was the inmate knew he was going to be executed, but he didn't understand why. He believed that the reason he was going to be executed was because it was a sham to get him from stop preaching. There is no confusion from Mr. Madison's perspective. His own expert said that quote, and this is a page 7 of his report, he understands the sentence, specifically the meaning of a death sentence. And he said quote, that Madison said the reason he was imprisoned was because of murder. And that's the difference here in this particular case, is that his own expert. So what if he can't understand or really follow through in his thinking what that means? And 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 in Florida the way he told one of his lawyers he was going to do after this case ended. We got it with respect on the things that matter, he does understand that. And we haven't talked about all the things that he does recall both before and after the offense. He remembers that he was convicted of multiple juvenile offenses and spent time in a youth detention facility. He remembers that. The only thing that I can ask you, what do you think is at all relevant? As a time of the conviction over 30 years ago, Madison was competent. There was no doubt about that. But I think this wasn't this case of a judge overriding a jury recommendation against death in Madison's case. Yes, Your Honor. So suppose he had come to that the end of the trial, in the condition he now is in, that is, can't see, he can barely walk at all of the other conditions that Mr. Stevenson brought out. Is there any likelihood that a jury would have recommended that for such a person or the judge would override the jury's recommendation for life rather than death? Judge, I know that would be a situation that would take place in a normal sincing hearing to determine whether those mitigating circumstances, aggravating circumstances out, right, the mitigators, but I would say what matters here is that scenario would not impact the state's, the constitutionality of seeking a death sentence or the, the priority of seeking death sentence, which again, nothing about Mr. Madison's conditions, impact the state's interest in seeking retribution for a heinous crime. What is the significance? I would have thought all we were concerned about is mental, mental ability and understanding. The various things, blindness, inability to walk, none of that should be relevant under Ford and Pinede, is it? That's correct, Your Honor. That's great. In fact, Pinede talks about something similar to that, that there could be other and other category of inmates who, as a result of not mental illness, that there were calcetrint, there are callous, they blame other people for the crime, that's not what Pinede is seeking to carve out the narrow exception for people doing so
. And why is that different than Pinede? In Pinede, the man was blaming someone else, which may be even worse for some people, or saying that someone else is going to protect him. But if you can't rationally appreciate why you're putting being put to death, how does that fulfill the Pinede standard? Sotomayor, because this case is different than the facts of Pinede. So in Pinede, the problem was the inmate knew he was going to be executed, but he didn't understand why. He believed that the reason he was going to be executed was because it was a sham to get him from stop preaching. There is no confusion from Mr. Madison's perspective. His own expert said that quote, and this is a page 7 of his report, he understands the sentence, specifically the meaning of a death sentence. And he said quote, that Madison said the reason he was imprisoned was because of murder. And that's the difference here in this particular case, is that his own expert. So what if he can't understand or really follow through in his thinking what that means? And 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 in Florida the way he told one of his lawyers he was going to do after this case ended. We got it with respect on the things that matter, he does understand that. And we haven't talked about all the things that he does recall both before and after the offense. He remembers that he was convicted of multiple juvenile offenses and spent time in a youth detention facility. He remembers that. The only thing that I can ask you, what do you think is at all relevant? As a time of the conviction over 30 years ago, Madison was competent. There was no doubt about that. But I think this wasn't this case of a judge overriding a jury recommendation against death in Madison's case. Yes, Your Honor. So suppose he had come to that the end of the trial, in the condition he now is in, that is, can't see, he can barely walk at all of the other conditions that Mr. Stevenson brought out. Is there any likelihood that a jury would have recommended that for such a person or the judge would override the jury's recommendation for life rather than death? Judge, I know that would be a situation that would take place in a normal sincing hearing to determine whether those mitigating circumstances, aggravating circumstances out, right, the mitigators, but I would say what matters here is that scenario would not impact the state's, the constitutionality of seeking a death sentence or the, the priority of seeking death sentence, which again, nothing about Mr. Madison's conditions, impact the state's interest in seeking retribution for a heinous crime. What is the significance? I would have thought all we were concerned about is mental, mental ability and understanding. The various things, blindness, inability to walk, none of that should be relevant under Ford and Pinede, is it? That's correct, Your Honor. That's great. In fact, Pinede talks about something similar to that, that there could be other and other category of inmates who, as a result of not mental illness, that there were calcetrint, there are callous, they blame other people for the crime, that's not what Pinede is seeking to carve out the narrow exception for people doing so. What is your view on the significance of the MRI evidence? You honor, and that kind of, Mr. Madison's point on that is kind of missing, I guess the point. MRIs can help diagnose vascular dimension, we never disputed whether he has vascular dementia or not, but MRIs can't help determine whether someone has a rational understanding. That's something that is inherently going to come from talking with the particular inmate, in particular in this case, where the despositive fact that Mr. Madison is relying on is that he can't remember the crime. That's inherently something that only comes from the defendant, and what he would have to admit that, whether to a psychologist or a testimony, and that can't be the rule, because if that was the case, no inmate would ever admit to committing the crime, if that meant that he were incompetent. But you've already prevailed on that point, at least with respect to your adversary's view, right? Yes, Your Honor. Okay, so I would have thought we can stop arguing about it, but we don't have to accept the concession, but the concern about the MRI evidence is that it would, if I understand it, tend to show something that is going to have a broader effect than just not remembering the facts of the crime. Is that not right? Well, Your Honor, I think MRI evidence can help. There's suggestion as far as the diagnosing. So that certainly can help with the individual fact determinations that a trial court would make. Yeah, but there's no MRI evidence that it's going to be looked at, and you can say, this shows that he doesn't remember the facts of the crime that doesn't, isn't going to have broader significance, right? That's correct. But again, in this case, of course, the trial court did consider, just in this particular case, did consider the fact that, according to Dr. Gough, this was a progressive disease, but at the end of the day, the court held that there was a rational understanding. I just want to make in this particular case that the petition, whether Madison's position, 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, whether competency to stand trial, competency to, be executed competency to wave appeals, they all function the same way. It's not the fact that someone comes to the court and says to a trial court, oh, I have this particular mental illness, and therefore I meet the competency standard. It would apply the exact same way it occurred here, that they, that it would consider that evidence and determine whether they have a rational understanding, and that's what the trial court did here. So you would think that if he came before the trial court on a question of competence to stand trial with what his mental condition is now, his lack of orientation to time in place, if he would have been found competent to stand trial? Yes, Your Honor. I do. Because again, he would have what the rational understanding that would be required in even the competency to stand trial setting, which is a rational understanding of the facts, the factual proceedings and the ability to assist with counsel. And here, that's what Madison's expert said, that he did understand, quote, he hasn't able to understand the nature of the pending proceeding and he hasn't understanding of what he was trying for. So yes. And what if what they meant by that was you can, you can make him understand what is going on today. But then tomorrow he comes back and you have to do it all over again. And then tomorrow, the next day comes back and you have to do it all over again. In other words, you can, you can, you can get him to understand something, but then he loses it. That's because that's the way memory works with people in this, with this form of dementia. What about that? You honor that, that might be a closer question
. What is your view on the significance of the MRI evidence? You honor, and that kind of, Mr. Madison's point on that is kind of missing, I guess the point. MRIs can help diagnose vascular dimension, we never disputed whether he has vascular dementia or not, but MRIs can't help determine whether someone has a rational understanding. That's something that is inherently going to come from talking with the particular inmate, in particular in this case, where the despositive fact that Mr. Madison is relying on is that he can't remember the crime. That's inherently something that only comes from the defendant, and what he would have to admit that, whether to a psychologist or a testimony, and that can't be the rule, because if that was the case, no inmate would ever admit to committing the crime, if that meant that he were incompetent. But you've already prevailed on that point, at least with respect to your adversary's view, right? Yes, Your Honor. Okay, so I would have thought we can stop arguing about it, but we don't have to accept the concession, but the concern about the MRI evidence is that it would, if I understand it, tend to show something that is going to have a broader effect than just not remembering the facts of the crime. Is that not right? Well, Your Honor, I think MRI evidence can help. There's suggestion as far as the diagnosing. So that certainly can help with the individual fact determinations that a trial court would make. Yeah, but there's no MRI evidence that it's going to be looked at, and you can say, this shows that he doesn't remember the facts of the crime that doesn't, isn't going to have broader significance, right? That's correct. But again, in this case, of course, the trial court did consider, just in this particular case, did consider the fact that, according to Dr. Gough, this was a progressive disease, but at the end of the day, the court held that there was a rational understanding. I just want to make in this particular case that the petition, whether Madison's position, 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, whether competency to stand trial, competency to, be executed competency to wave appeals, they all function the same way. It's not the fact that someone comes to the court and says to a trial court, oh, I have this particular mental illness, and therefore I meet the competency standard. It would apply the exact same way it occurred here, that they, that it would consider that evidence and determine whether they have a rational understanding, and that's what the trial court did here. So you would think that if he came before the trial court on a question of competence to stand trial with what his mental condition is now, his lack of orientation to time in place, if he would have been found competent to stand trial? Yes, Your Honor. I do. Because again, he would have what the rational understanding that would be required in even the competency to stand trial setting, which is a rational understanding of the facts, the factual proceedings and the ability to assist with counsel. And here, that's what Madison's expert said, that he did understand, quote, he hasn't able to understand the nature of the pending proceeding and he hasn't understanding of what he was trying for. So yes. And what if what they meant by that was you can, you can make him understand what is going on today. But then tomorrow he comes back and you have to do it all over again. And then tomorrow, the next day comes back and you have to do it all over again. In other words, you can, you can, you can get him to understand something, but then he loses it. That's because that's the way memory works with people in this, with this form of dementia. What about that? You honor that, that might be a closer question. Again, that you would, that would determine on the factual circumstances in front of that particular court. But again, that's not what we have here. It was, Mr. Madison said to both experts that he remember that he had three separate trials that he was convicted of a death sentence. He, to both experts, he believed that he did not agree with the particular Senate. So that's not what we have here in this particular case because, as this quote noted before, both experts testimony demonstrated that he did have a rational understanding of his particular sentence in this case. Another point that would just, I just want to harken back to the fact that we talked about the original rule that Madison, in the first question presented, is there just simply no objective evidence of a position supporting Madison's position. You know, in the first or second question presented, no state legislature has determined that prohibit states. If a 31 states that have the death penalty has prohibited states from carrying on an execution for someone who has a mental illness or who cannot remember the particular facts of the crime, the lower courts are uniform in that respect in addressing competency as well. And the Texas brief points that out in regards to competency to stand trial. And we point out in our brief that of the three states that have addressed an issue similar to this, they have all come down on Alabama side that the simply having dementia and not remembering the facts of the crime does not prevent you per say from having a rational understanding. So the final point I would just mention to this court is what again what Madison seeks is unprecedented. This court has never created a categorical rule excluding someone from capital punishment, where at least there were some objective evidence of a national consensus in that direction here, there is none. And the consequences of such a rule would prevent the state from carrying on an execution on Madison who would. But you don't disagree that Ford and Pineda read properly would not be limited to insanity. Delusion or severe dementia. Of course not, all those things are included in for the Pineda and the thing is that in here in this case the troncourt did consider them and found that notwithstanding those conditions. The fact that he had these strokes and memory loss, he still had a rational understanding of it. Well, that's interesting to me because I don't read anywhere in Kirkland where he did any analysis of rationality. What he did is I understood it is just does he remember his crime or something? He doesn't remember his crime, but does he understand where he is and what they're going to do to him? That's not the same as rational understanding. He did no memory test to see how long Mr. Madison retained information generally. He did not describe the extent of his dementia. He didn't do any of the things one would expect if he was going to opine on rationality. So how the only one who did that was Dr. Goff and that part of his discussion was not addressed by the court below at all. Just two points in response to that, Your Honor. We disagree number one on page two of Dr
. Again, that you would, that would determine on the factual circumstances in front of that particular court. But again, that's not what we have here. It was, Mr. Madison said to both experts that he remember that he had three separate trials that he was convicted of a death sentence. He, to both experts, he believed that he did not agree with the particular Senate. So that's not what we have here in this particular case because, as this quote noted before, both experts testimony demonstrated that he did have a rational understanding of his particular sentence in this case. Another point that would just, I just want to harken back to the fact that we talked about the original rule that Madison, in the first question presented, is there just simply no objective evidence of a position supporting Madison's position. You know, in the first or second question presented, no state legislature has determined that prohibit states. If a 31 states that have the death penalty has prohibited states from carrying on an execution for someone who has a mental illness or who cannot remember the particular facts of the crime, the lower courts are uniform in that respect in addressing competency as well. And the Texas brief points that out in regards to competency to stand trial. And we point out in our brief that of the three states that have addressed an issue similar to this, they have all come down on Alabama side that the simply having dementia and not remembering the facts of the crime does not prevent you per say from having a rational understanding. So the final point I would just mention to this court is what again what Madison seeks is unprecedented. This court has never created a categorical rule excluding someone from capital punishment, where at least there were some objective evidence of a national consensus in that direction here, there is none. And the consequences of such a rule would prevent the state from carrying on an execution on Madison who would. But you don't disagree that Ford and Pineda read properly would not be limited to insanity. Delusion or severe dementia. Of course not, all those things are included in for the Pineda and the thing is that in here in this case the troncourt did consider them and found that notwithstanding those conditions. The fact that he had these strokes and memory loss, he still had a rational understanding of it. Well, that's interesting to me because I don't read anywhere in Kirkland where he did any analysis of rationality. What he did is I understood it is just does he remember his crime or something? He doesn't remember his crime, but does he understand where he is and what they're going to do to him? That's not the same as rational understanding. He did no memory test to see how long Mr. Madison retained information generally. He did not describe the extent of his dementia. He didn't do any of the things one would expect if he was going to opine on rationality. So how the only one who did that was Dr. Goff and that part of his discussion was not addressed by the court below at all. Just two points in response to that, Your Honor. We disagree number one on page two of Dr. Kirkland's report. He did set out the Ford and Pineda. He standard and as the troncourt noted in the hearing, that particular doctor had done, I think approximately 4,000 competency evaluations, which for competency to stand trial is similar to the standard for competency to be executed as the Texas brief points out. And he did analyze the rational understanding. It would make sense again why Dr. Kirkland would not specifically inquire to whether an inmate would remember committing the crime because that is not determinative under Ford and Pineda. But in this case, because Madison does have a rational understanding that he was convicted of the crime of murder, that he will be executed for that murder, we would ask this court to affirm the state court. Thank you, Council. Mr. Stevenson, you have four minutes remaining. Yes, thank you. I just want to stress and invite this court to look at the 11th Circuit Pleatings, where the state took the exactly opposite position. There has been no point prior to this court where the state has acknowledged that dementia would be a basis on which a court could find someone incompetent to be executed. Their brief, the post-hearing brief that they filed after the hearing, begins. Initially, it must be noted that Madison has failed to implicate Ford or Pineda in this proceeding. Both the court appointed expert in the defense retainer agreed that Madison does not suffer from psychosis or delusions. That was the circle they drew around the evidentiary consideration. Dr. Kirkland, after hearing Dr. Goss Testimony, says I agree with it, but he conceived it. He expressly stated that he doesn't believe it's relevant because of the very narrow legal standard here. And that very legal, narrow legal standard was given to him and to the court by the state as only including psychosis, delusions, and insanity. At the 11th Circuit, they made that argument, and that's why the 11th Circuit made the judgment that if you consider dementia, you come to a different finding. I just don't think it's credible to argue that the judge in this case considered dementia and made a determination that Mr. Madison's dementia does not leave him competent to be executed. And to that extent, we've never argued that this is a case about a categorical ban on executing people with a certain kind of condition. But we've argued is that this court has held in Ford and Pineda that it is unconstitutional to execute people who are incompetent. And we've rooted that argument on what this Court has acknowledged
. Kirkland's report. He did set out the Ford and Pineda. He standard and as the troncourt noted in the hearing, that particular doctor had done, I think approximately 4,000 competency evaluations, which for competency to stand trial is similar to the standard for competency to be executed as the Texas brief points out. And he did analyze the rational understanding. It would make sense again why Dr. Kirkland would not specifically inquire to whether an inmate would remember committing the crime because that is not determinative under Ford and Pineda. But in this case, because Madison does have a rational understanding that he was convicted of the crime of murder, that he will be executed for that murder, we would ask this court to affirm the state court. Thank you, Council. Mr. Stevenson, you have four minutes remaining. Yes, thank you. I just want to stress and invite this court to look at the 11th Circuit Pleatings, where the state took the exactly opposite position. There has been no point prior to this court where the state has acknowledged that dementia would be a basis on which a court could find someone incompetent to be executed. Their brief, the post-hearing brief that they filed after the hearing, begins. Initially, it must be noted that Madison has failed to implicate Ford or Pineda in this proceeding. Both the court appointed expert in the defense retainer agreed that Madison does not suffer from psychosis or delusions. That was the circle they drew around the evidentiary consideration. Dr. Kirkland, after hearing Dr. Goss Testimony, says I agree with it, but he conceived it. He expressly stated that he doesn't believe it's relevant because of the very narrow legal standard here. And that very legal, narrow legal standard was given to him and to the court by the state as only including psychosis, delusions, and insanity. At the 11th Circuit, they made that argument, and that's why the 11th Circuit made the judgment that if you consider dementia, you come to a different finding. I just don't think it's credible to argue that the judge in this case considered dementia and made a determination that Mr. Madison's dementia does not leave him competent to be executed. And to that extent, we've never argued that this is a case about a categorical ban on executing people with a certain kind of condition. But we've argued is that this court has held in Ford and Pineda that it is unconstitutional to execute people who are incompetent. And we've rooted that argument on what this Court has acknowledged. The Court has said, look, the death penalty gives the state an incredible power. It's an awesome power. The authority to execute someone who is not an immediate threat is an awesome power. And that power has to be utilized fairly, reliably, and humanely. This Court's jurisprudence in Ford and Pineda speaks to the humane part. And what this Court said is that if someone is disabled and incompetent and fragile and bewildered and confused in the way that we have seen in the context of insanity, in the context of other continental illness, it is simply not humane to execute them. And in that regard, the Eighth Amendment here plays a different role than some of the other amendments. The Court always looks at facts and circumstances through the lens of the Constitution, through the window of the Constitution. And we have that here, but the Eighth Amendment isn't just a window, it's a mirror. And what the Court has said is that our norms, our values are implicated. When we do things to really fragile, really vulnerable people, and what we've argued is that dementia, in this case, renders Mr. Madison, frail, bewildered, vulnerable in a way that cannot be reconciled with executing him because of his incompetency. The state never acknowledged that argument as a valid argument. The Court never made a finding about that argument. And we believe that when you consider the facts of his dementia and the court holdings, that a determination that executing someone in this condition cannot be reconciled with an Eighth Amendment prohibition against cruel and unusual punishment. And for that reason, this awesome power that the state has requires obligations, requires oversight. And here the state didn't meet those obligations in oversight by making the informed determination that his dementia does not leave him so incapacitated that he is incompetent to be executed. They've never said anything about dementia. And so I don't think this Court can rely on the argument that somehow, in this invisible record, with no reference to dementia by the state, by the expert, or by the court, that that determination has been found. The only court to make a determination about the relevance of dementia here was the 11th Circuit. And what they clearly found is that when you look at the level of despair and the level of confusion and the level of injury, and Mr. Chief Justice, you're right, it's not just the physical symptoms. It's not just that he's blind and can't walk and can't speak, but those symptoms reinforce the credibility, the legitimacy, the severity of his acute dementia. And we don't believe this Court can consistent with the Edd Amendment's prohibition against cruel and unusual punishment, and allow an execution of someone impaired in the way that Mr. Madison has impaired, or to allow any defendant to be declared competent to be executed, with these kinds of clear, medically verifiable disorders. And for that reason, we would ask this Court to reverse the lower court judgment. Thank you. Thank you, Council
. The case is submitted