>> ALL RISE.SUPREME COURT OF FLORIDA IS NOWIN SESSION.PLEASE BE SEATED.>> THANK YOU, NEXT CASE ON THEDOCKET IS WALLS v. STATE.>> MR. CHIEF JUSTICE, MAY ITPLEASE THE COURT, BILLY NIOLES.TO MY LEFT IS BAYA HARRISON.TIME IS LIMITED.LET ME CUT TO THE CHASE WITHRESPECT TO THE INTELLECTUALDISABILITY CLAIM WITH MR. WALLS.HE IS THE ONLY POST PETITIONERMADE A PROFFER WHICH WITHIN EACHOF THE THREE PRONGS OF THE HALLTEST AND HAS NOT BEEN PERMITTEDEVIDENTIARY HEARING FOR THE INORDER TO THE FACTS TO DETERMINEIN ORDER FOR THIS COURT TO HAVEA RECORD WHICH IT CAN CONDUCTREVIEW.>> HAVE WE DETERMINED, DO YOUSEE THAT WE HAVE DETERMINED HALLIS RETROACTIVE?HAVE WE DONE THAT YET?>> YOU HAVE YOU HAVE NOTEXPRESSLY DEALT WITH THERETROACTIVITY.>> THAT'S WHAT WE'RE DOING HERE?>> NO, WE'RE NOT.>> I THINK THAT, I THOUGHT WEWERE HERE TO MAKE A DECISION ANDMAKE SURE WE'RE UNIFORM ONWHETHER HALL SHOULD BERETROACTIVE?>> HE CAN DO THAT, IF YOUR HONORWANTS I CAN JUMP RIGHT TO THAT.>> I THINK THAT'S GOOD IDEA.>> SPECIFICALLY WITH RESPECT TOTHE RETROACTIVITY OF HALL, THEREAL QUESTION IS ATKINSRETROACTIVE.>> IS WHAT?>> IS ATKINS RETROACTIVE NOTHALL.IN EVERY POST-HALL CASE YOU HADHALLIBURTON, REMANDED BY THEUNITED STATES SUPREME COURTPOST-HALL.

IN WRIGHT, WHERE THERE WAS AREQUEST FOR-PROFIT HALLEVIDENTIARY HEARING.IN OATES YOU UNDERTOOK ANALYSISCHERRY IS OVERRULED AND THERE ISNEW LANDSCAPE IN FLORIDA.MOST RECENTLY CARDONA,REITERATED APPLICABILITY OFHALL.IN EVERY ONE OF THOSE CASES YOUHAD A EVIDENTIARY HEARING SOTHERE IS RECORD THAT CAN BEREVIEWED WITH RESPECT TO THEHALL CLAIM.TO PUT IT ANOTHER WAY, THERE ISNOT A CASE OF INTELLECTUALDISABILITY THAT THIS COURT HASHAD POST-HALL WHERE THERE HASBEEN A SHOWING IN EACH OF THETHREE PROFFERS.WHERE THERE IS I.Q. 6 THERE ISI.Q. OF 75 OR BELOW WHERE YOUHAVE NOT RULED ON THE MERITS.YOU HAVE DONE THAT CONSISTENTLYPOST-HALL DONE THIS THE FACE OFARGUMENT FROM THE STATE THATHALL SHOULD NOT BE APPLIEDRETROACTIVELY I HAVE DONE THAT ITHINK WHAT YOU QUOTED IN OATESAND OTHER CASES WHICH THATATKINS SET AS CATEGORICALPROHIBITION ON THE EXECUTION OFA PERSON WITH AN INTELLECTUALDISABILITY.>> SO IS THAT YOUR ARGUMENT FORWHY HALL OR ATKINS ARE, SHOULDBE APPLIED TO THIS CASE?IS IT A FACT THAT,CONSTITUTIONALLY, YOU CAN NOTAPPLY, IMPOSE A DEATH SENTENCEON A PERSON WHO ISINTELLECTUALLY-->> CONSTITUTIONALLY UNDER ATKINSAS REITERATED IN HALL AND ASREITERATED IN BRUMFELD, THEUNITED STATES SUPREME COURTOPINION AFTER HALL THAT ACTUALLYFOUND THE STATE COURTUNREASONABLY NOT JUST ERRONEOUS,UNREASONABLE FAILING TO HOLD A

EVIDENTIARY HEARING WHEN THEEVIDENCE WAS AKIN TO THEEVIDENCE THAT MR. ATKINSON ITS MERITS BECAUSE OF THECATEGORICAL PROHIBITION OPTEXECUTION OF SOMEONE WITH ANINTELLECTUAL DISABILITY.JUSTICE QUINCE, JUST TO GIVE YOUAN EXAMPLE, IF MR. WALLS, IF THECLAIM WAS HE WAS 14 YEARS OLD ATTHE TIME THAT HE WAS SENTENCEDTO DEATH, WE WOULD NOT BETALKING ABOUT RETROACTIVITY ORPROCEDURAL DEFAULT OR LAW OF THECASE OR ANY OF THOSE THINGS.WE WOULD BE CUTTING RIGHT TO THEMERITS BECAUSE OF THECATEGORICAL CONSTITUTIONALPROHIBITION.>> NOW I WANT TO ASK YOU ABOUTTHE THREE PRONGS WHICH IS, FIRSTOF ALL, IT'S INTELLECTUALDISABILITY AT THE TIME THE CRIMEWAS COMMITTED, CORRECT?>> IT'S-->> THAT IS WHAT ATKINS SAYS.IT IS NOT, IF SOMEHOW SOMEBODYAFTER, WHEN HE IS IN PRISON,AFTER THE CRIME AND SOMEBODYBOPS HIM OVER THE HEAD AND HEBECOMES, YOU KNOW,BRAIN-DAMAGED, IS THAT PERSON-->> YES, YOUR HONOR.MY HESITANCY IS THAT CASE ANDTHAT IS NOT THE CASE HERE.THAT WAS MY HESITANCY.>> THE ISSUE, I WANT TOUNDERSTAND THIS ISSUE OFMANIFESTATION BEFORE 18.>> YES.>> I THINK THAT IS WHERE THESTATE IS HITTING YOU ON.MANIFESTATION BEFORE 18 IS PARTOF THE INTERDEPENDENT ANALYSISTO ASSURE IT IS LEGITIMATEINTELLECTUAL DISABILITY CLAIMAND THAT IF THEY'REINTELLECTUALLY DISABLED AT THETIME OF THE CRIME.THAT IS THE RELEVANT TIME.

YOU'RE SAY NO.WHAT IS THE RELEVANT TIME?>> I'M NOT SAYING NO.THE REASON YOU HAVE THE ONSETPRONG, THE REASON YOU LOOK ATONSET BEFORE AGE 18 IS BECAUSEINTELLECTUAL DISABILITY IS ADEVELOPMENTAL DISORDER.SO WHAT YOU LOOK FOR IS NOT, ASYOU SAID IN OATES, IT'S NOT, ISTHERE A DIAGNOSIS PRE-18 ISTHERE QUALIFYING I.Q. SCOREPRE-18?IS THERE EVIDENCE HE WOULD HAVEBEEN TESTED WITHIN THE RANGEPRE-18?WHAT YOU SAID IN CARDONA, WHATYOU SAID IN OATES, WHAT THESUPREME COURT HELD IN BRUFFELDAND WHAT THE SUPREME COURT HELDIN HALL, YOU LOOK WHETHERADAPTIVE DEFICITS MANIFESTEDPRE-18.WHETHER THE DEFICITS IN ADAPTIVEFUNCTION.>> IS THAT WHAT HALL SAYS?>> THAT IS WHAT HALL SAYS ANDTHAT'S WHAT YOU SAID HALL SAIDIN CARDONA AND THAT'S WHAT YOUSAID HALL SAYS IN OATES.>> SO YOU'RE SAYING THAT, THE--YOU DON'T, YOU DON'T LOOK ATBOTH THE INTELLECTUAL SCORE, FORLACK OF A BETTER WORD AND THEADAPTIVE FUNCTIONING BEFORE AGE18?>> WHAT YOU WROTE IN CARDONA WASONSET OF THESE DEFICITS DURING,THE ADAPTIVE DEFICITS DURING THEDEVELOPMENTAL PERIOD.WHAT THE COURT-->> THESE DEFICITS, OKAY.>> WHAT THE SUPREME COURT WROTEIN BRUMFELD THAT IS UNREASONABLETO DENY A HEARING WHEN THERE ISADAPTIVE DEFICITS PRE-18.>> THE DEFICITS ARE DEFICITS INADAPTIVE FUNCTIONING AND DEFICITIN INTELLECTUAL FUNCTIONING?CORRECT?

>> WITH YOU WILL DUE RESPECTTHOSE ARE TWO SEPARATEINQUIRIES.THERE IS A THREE-PRONG TEST.SIGNIFICANTLY SUBAVERAGEPREINTELLECTUAL FUNCTIONING.YOU LOOK AFTER HALL WHETHERTHERE IS I.Q. SCORE OFAPPROXIMATELY 75 OR BELOW.IF THERE IS SUCH A THING INADULTHOOD OR IN CHILDHOOD, THENUNDER HALL AND UNDER YOUROPINION IN OATES THAT DEFENDANTGET AS HEARING, GET THEOPPORTUNITY TO SHOW-->> WHAT HAPPENS IN DEFENDANTLIKE THIS ONE WHO HAD I.Q. OF--101 AT AGE 14, AND WHAT DO WE DOWITH HIM?>> THAT'S THE ULTIMATE QUESTION.SO I'LL JUST JUMP AHEAD TO THATTHERE IS NO QUESTION HERE THATMR. WALLS HAS ADAPTIVE DEFICITS.STAY WITH ME FOR A MOMENT.>> YOU CAN SAY THAT FOR THE SAKEOF ARGUMENT BUT I'M NOT SURETHAT IS NECESSARILY TRUE.>> DR. TUMOR CONDUCTED ADAPTIVEDEFICITS TESTING AND POLLINGADAPTIVE DEFICIT INSTRUMENT.>> AS I SEE THE RECORD THERE ISNO REAL EXPLANATION OF WHATTHOSE DEFICITS ARE.>> THERE ARE, LET ME LAY OUTWHAT THOSE ARE FOR YOU.FROM YOUR PRIOR POST-CONVICTIONAPPEAL OPINION AND FROMDR. TUMOR'S TESTIMONY.HERE IS THE RUB, JUSTICE QUINCE.DR. TUMOR PROVIDED ADAPTIVEDEFICITS INSTRUMENT.HE INTERVIEWED FAMILY MEMBERS.HE LOOKED AT ENTIREDEVELOPMENTAL HISTORY ANDPROVIDED OPINIONS THAT MR. WALLSHAS ADAPTIVE DEFICITS AND HADTHOSE DEFICITS PRE-18.HE PROVIDED AN OPINION BASED ONTHE ADAPTIVE TESTING INSTRUMENTTHAT MR. WALLS HAD THOSE

ADAPTIVE DEFICITS IN 13 SEPARATEAREAS OF ADAPTIVE FUNCTIONING.THAT OPINION WAS NOT ONLY NOTCONTRADICTED BY THE STATE, ITWAS QUOTED-- BY, WHAT THE STATEDID, IT SAID, AND I'LL JUSTQUOTE IT HERE, HALL DOES NOTAPPLY TO CASES SUCH AS THISWHERE THE I.Q. SCORES PRIOR TO18 WERE ABOVE THE RANGE OF 75.AND THE TRIAL COURT TOOK THAT ASITS LEAD AND DID THAT AS ITSANALYSIS.NOW TO TELL BUT THE ADAPTIVEDEFICITS AT 18 I'LL JUST GIVEYOU THE ONE MINUTE, TWO MINUTEVERSION OF THE HISTORY.MR. WALLS WAS ARRESTED AT AGE19.THE TRIAL COURT FOUND IN HISSENTENCING ORDER THAT HE WAS INCLASSES FOR THE HANDICAPPED.HAD BRAIN DAMAGE AND AT AGE 19,THE AGE OF THE CRIME FUNCTIONEDAT THE LEVEL OF A 12-YEAR-OLD.THAT'S THE TRIAL COURT'SORIGINAL MITIGATION FINDING.THIS COURT'S PRIORPOST-CONVICTION APPEAL OPINIONAND DR. TOOMER'S PROFFER IS THATWHEN MR. WALLS WAS A CHILD HEWAS HELD BACK IN ELEMENTARYSCHOOL, PUT IN SPECIAL CLASSESIN ELEMENTARY SCHOOL.BOUND TO HAVE HAD ADHD.FOUND TO HAVE BEEN LEARNINGDISABLED.HE WAS SUBSEQUENTLY AT AGE 15,AND JUSTICE QUINCE, THAT'S THEYEAR AFTER THOSE TWO TESTS YOUREFERRED TO, AT AGE 15 HE WASPUT IN A SPECIAL YOUTH CAMP FORTHE HANDICAPPED.-- HOSPITAL WHERE HE WAS GIVENPSYCHOTROPIC MEDICATION.LET ME JUST AHEAD.AT AGE 19, ONE YEAR AFTER 18WHEN HE WAS ARRESTED FOR THISCRIME, THREE OF THE FIVE EXPERTSWHO EXAMINED HIM FOR COMPETENCY

FOUND THAT HE WAS INCOMPETENTBECAUSE HE WAS NOT CAPABLE OFUNDERGOING A CRIMINALPROSECUTION.>> LET ME ASK YOU A QUESTIONJUST ABOUT THIS 110 I.Q.BECAUSE-->> 102, THEN 101.>> WHATEVER.IT IS OVER 100, WHICH IS WAYHIGHER THAN THE MAJORITY OF OURCRIMINAL DEATH PENALTYDEFENDANTS.HOW DO YOU EXPLAIN, AND I THINKTHIS IS WHAT IS, THE STATE ISEMPHASIZING SOMEBODY THAT HASTHAT HISTORY.>> YES.>> YOU'RE RIGHT, THE JUDGE FOUNDALL THAT.>> YES.>> SORT OF WONDER WHY THE DEATHPENALTY WAS IMPOSED EXCEPT THEREALL THE TERRIBLE AGGRAVATORS,WHY, HOW CAN YOU HAVE 1110--100 I.Q.?>> THAT IS THE ULTIMATEQUESTION.>> DID SOMEONE EXPLAIN IT?WAS IT EVER EXPLAINED.>> NO.THAT'S WHERE I'M GOING.IN HIS HOOD HISTORY HE WAS FOUNDTO HAVE HAD LANGUAGE DEVELOPMENTPROBLEMS, ATTENTION PROBLEMS,SELF-CONTROL PROBLEMS.>> DID SOMEBODY TAKE THE TESTFOR HIM?>> HE COULDN'T READ.>> HE COULDN'T DO ARITHMETIC.>> DID SOMETHING HAPPEN BETWEEN14 AND 18.>> ALL THE EXPERTS SAID THEREWAS I.Q. DECLINE.>> THAT IS WHY WE NEED TO HAVEHEARING.>> YES.YOU DOESN'T KNOW WHAT HIS I.Q.WAS AT 16, 17, AT 15.BUT JUSTICE PERRY, THERE IS EVEN

MORE THAN THAT.WHEN YOU LOOK AT HISDEVELOPMENTAL HISTORY THOSEI.Q.s MAKE NO SENSE.MR. WALLS WAS TESTED AT AGE 39BY DR. MCCLAREN FOR OUR FRIENDSFROM THE ATTORNEY GENERAL'SOFFICE WHO INDICATED THAT HISI.Q. WAS 74.DR. MCCLAREN GAVE THE WAYS 3.IT SUBJECT TO CROSS-EXAMINATION.HE TOLD US WHAT IT WAS.TOLD US HOW HE SCORED IT.MR. WALLS WAS TESTED AT PENALTYBY DR. LARSON, AGE 23, 24.HIS I.Q. WAS 72.DR. LARSON TOLD US ABOUT THEWAISIII HE GAVE, HOW HE SCOREDIT AND WHAT THE RESULT.I.Q. SCORES FROM AGE 12 AND 14,WE KNOW NOTHING ABOUT THEM.WE DON'T KNOW WHO GAVE-- DATA.WE DON'T KNOW IF THEY WERE AFULLY-ADMINISTEREDINDIVIDUALIZED I.Q. TEST ORGIVEN TO HIM IN A GROUP.WE DON'T KNOW IF THEY WEREACCURATELY SCORED OR PRORATED.WE KNOW NOTHING ABOUT THOSETEST, OTHER THAN REFERENCES TOTHEM IN THE REPORTS OFDR. LARSEN, DR. MCCLAREN ANDDR. TOOMER'S.SO, JUSTICE PERRY, THERE IS-->> WHAT IS IT THAT YOU'RESUPPOSED TO DO?YOU ARE ADVOCATING FOREVIDENTIARY HEARING ON THIS.SO AT THIS EVIDENTIARY HEARING,WOULD YOU PRESENT SOME TESTIMONYABOUT WHAT, HOW THIS SCORES, HOWTHESE TESTS WERE DONE, WHATEVERALL OF THAT?IS THAT WHAT YOU'RE ADVOCATINGFOR?>> THREE THINGS TO BE PRESENTEDAT AN EVIDENTIARY HEARING.NUMBER ONE, MAKE A RECORD ASJUSTICE PERRY SUGGESTED AS TOWHAT HAPPENED IF THOSE TESTS ARE

VALID, WHAT HAPPENED BETWEENAGES 13, 14 AND AGE 18?WHERE WAS HIS INTELLECTUALFUNCTIONING HAD BEEN.WE KNOW HE SUFFERED MENINGITIS.>> THAT WAS BEFORE THESE TEST.>> WE DO KNOW HE SUFFEREDMENINGITIS AND HAD RITALIN.THERE IS EXPERT TESTIMONY WHENYOU COMBINE THOSE THINGS YOUHAVE PRECIPITOUS DROP IN I.Q.WE DO KNOW BY THE AGE OF 19, THE12-YEAR-OLD-->> WE HAVE A I.Q. SCORE FROMTHAT AGE AT 19?>> WE HAVE THE TRIAL COURT'SFINDING AND WE HAVE DR. LARSENTESTIFYING THAT-->> WE HAVE I.Q. SCORE FORTHAT-->> NOT FOR THAT AGE, NO.THE TRIAL COURT'S FINDING BASEDON DR. LARSE'S TESTIMONY, BASEDON I.Q. OF 72, WHICH WASADMINISTERED APPROXIMATELY 23,24.NUMBER TWO, WE NEED TO MAKE ARECORD AS TO THESE TESTS.IF THESE TESTS ARE THE STUMBLINGBLOCK OF MR. WALLS' BEING HEARDWE NEED TO HAVE EXPERT TESTIMONYWHAT THOSE CHILDHOOD TESTS MEANTODAY.AS SUPREME COURT SAID IN WALLSAND YOU SIDE IN OATES, EXPERTSMAY CHANGE THEIR MIND POST-HALL.MORE SIGNIFICANTLY THAN ANY OFTHAT, YOU NEED AN ACTUALANALYSIS BY THE TRIAL COURT OFALL THREE PRONGS.THAT'S WHAT YOU SAID NEEDS TO BEDONE IN OATES.IN HALL AND BRUMFELD, UNITEDSTATES SUPREME COURT, OATES,YOUR HONORS CASES WHAT THE TRIALCOURT WAS CASTIGATED FOR,PICKING ONE THING, AND USINGTHAT THING TO DENY RELIEF WHENWHAT IS REQUIRED UNDER ATKINS ISA ROBUST ANALYSIS.

>> SO WHAT DID THE BE SAID THATHE DIDN'T HAVE ANY SCORE, THATHE HAD SCORES HIGHER THAN 75?>> THE TRIAL JUDGE LOOKED ATTHIS ENTIRE CASE THAT HAD ALEGITIMATE PROFFER ON ALL THREEPRONGS AND SAID THERE ARE THESETWO SCORES FROM CHILDHOOD ANDTHEREFORE I DENY RELIEF.I HAVE TO TELL YOU, JUSTICEQUINCE, THERE IS NOT ANOTHERCASE LIKE THAT HAS BEEN AFFIRMEDWHERE A JUDGE PLUCKS ONE THINGOUT OF THE ENTIRE HISTORY,CONTRARY TO OATES DOESN'T DOFULL ANALYSIS OF THREE PRONGS.DOESN'T EVEN DO A FULL ANALYSISTHAT LOOKS HOW DO YOU COMPARETHE ADAPTIVE DEFICITS?HOW DO YOU COMPARE A KID THATCAN'T SPELL, CAN'T READ, CAN'TWRITE, DEVELOPMENTALLY DELAYED,IN SPECIFIC CLASSES GIVENPSYCHOTROPIC MEDICATION AND PUTIN YOUTH CAMPS AFTER THOSE TESTSHOW DOES THAT SQUARE WITH THATTESTING?YES, YOUR HONOR.>> YOU'RE INTO YOUR REBUTTAL.>> YES, MR. CHIEF JUSTICE, THANKYOU.A JUDGE THAT LOOKS AT ALL THATMAY VERY WELCOME TO A DIFFERENTRESULT BUT THE PARTIES IN THISCASE NEVER HAD A CHANCE TO HAVETHAT TESTED AN AN ACTUALEVIDENTIARY HEARING I WILL LEAVEYOU WITH THIS THOUGHT IN THISFRONT PART.OTHER PETITIONERS HAVE GOTTENOATES, CARDONA, CONSISTENTLYTHERE HAS BEEN A HEARING.SO YOU DON'T HAVE ME SAYINGBLAH, BLAH, BLAH, ABOUT THETESTS AND THE STATE SAYING,BLAH, BLAH, BLAH.YOU DON'T HAVE A RECORD TOREVIEW.>> CARDONA WAS A REVERSAL.SO DON'T THROW OUT EVERY CASE.

CARDONA REVERSED A DEATHSENTENCE.>> NO, NO, I KNOW, RIGHT YOUREMANDED FOR A HEARING.HALLIBURTON YOU DID.OATES YOU DID.THE SUPREME COURT REMANDED BRUMEFELD WHEN MR. IS PROFFER OFADAPTIVE DEFICITS PRE-18, THATIS ADAPTIVE DEFICITS OF PRE-18IN BRUMFELD AND I.Q. SCORE UNDER75, NOT REASONABLE NOT TO HOLD AHEARING.MR. WALLS YOU HAVE I.Q. SCORESUNDER 75 AND HAVE A ROBUSTPROFFER OF ADAPTIVE DEFICITSPRE-18.>> BUT THOSE PRIOR CASES GRANTEDTHEY DID HAVE THE LOW I.Q., DIDTHEY HAVE AN I.Q. OVER 100BEFORE 18?ISN'T THAT A DISTINGUISHINGFACTOR IN THIS CASE?>> THAT'S THERE IN THIS RECORD.>> THAT'S DIFFERENT THAN THOSECASES.>> IT IS TO THIS EXTENT.>> THAT'S FINE.I UNDERSTAND.YOUR ARGUMENT IS WE STILL HAVETO-->> JUSTICE LEWIS, LEAVE WITH YOUONE THOUGHT.THOSE CASES SUCH AS OATES THEYDID HAVE SCORES OF 80, 85.THEY HAD SCORES OVER THE 75.THANK YOU VERY MUCH, YOURHONORS.I WILL RESERVE THE REMAINDER OFMY TIME.>> MAY IT PLEASE THE COURT.SANDRA TAGGERT, ASSISTANTATTORNEY GENERAL ON BEHALF OFTHE STATE.ATKINS IS RETROACTIVE HALL ISNOT.ATKINS ACTUALLY PLACED BEYONDTHE POWER THE STATE'S ABILITY TOPUNISH TO GET-->> HERE'S THE PROBLEM AS WE GO

INTO THIS.IT IS HALIBURTON, WHICH ISCERTAINLY WAS REMANDED BY THEU.S. SUPREME COURT IN LIGHT OFHALL, SO, WE, THE, BUT WE WANTTO AVOID IS BLATANTINCONSISTENCY.>> I UNDERSTAND.BUT HALLIBURTON HAD, HAD, WAS ONAN INITIAL REVIEW OF HISRETARDATION CLAIM AND ATKINS ISRETROACTIVE.>> HALIBURTON COULDN'T BE-->> OF THE RETARDATION CLAIM.ATKINS IS RETROACTIVE.HALLIBURTON FIND A MOTION.EVENTUALLY GETS HIS CLAIMSUMMARILY DENIED WITHOUTEVIDENTIARY HEARING.MR. WALLS HAD AN EVIDENT HEARINGUNDER 302-- THAT WAS JUST-->> WAIT, WAIT.HE MAY HAVE HAD THE HEARING BUTISN'T THE QUESTION WHETHER ALLTHE ELEMENTS WERE CONSIDERED ANDEXPLORED IN THAT HEARING?ISN'T THAT, ISN'T THAT.>> ONLY EVIDENCE HE PRESENTED ATTHAT HEARING-->> ISN'T THAT THE QUESTIONBEFORE US, NOT WHETHER HE HAD AHEARING BUT WHETHER THAT HEARINGADDRESSED PERTINENT ELEMENTS?>> WELL, NUMBER ONE, HE HAD THEOPPORTUNITY TO PRESENT ALL THATEVIDENCE AND IN FACT THE ONLYEVIDENCE HE DID PRESENT AT THATHEAR WAS DR. TOOMER'S WHOACTUALLY TESTIFIED ONLY THAT HEHAD ADAPTIVE FUNCTIONINGDEFICITS BEFORE THE AGE OF 11.HE ADMITTED HE DIDN'T EVEN ADMITADULT ADAPTIVE FUNCTIONINGDEFICITS.SO THE DEFENDANT CERTAINLY NEWDID BE.>> HE ADMITTED WHAT?>> HE ADMITTED DURINGCROSS-EXAMINATION HE NEVERCONSIDERED ADAPTIVE FUNCTIONING

PAST THE AGE OF 18.WE DON'T HAVE EVIDENCE PRESENTEDON PRONG TWO OF RETARDATION.THE THREE PRONGS OF RETARDATIONARE, ONE, SIGNIFICANTLYSUBAVERAGE INTELLECTUALFUNCTIONING, TWO, CONCURRENTDEFICITS IN ADAPTIVEFUNCTIONING, AND THREE, ONSET OFTHE CONDITION MEANING ONE ANDTWO BEFORE THE AGE OF 18.AND THAT'S TO DISTINGUISH WHATJUSTICE PARIENTE WAS TALKINGABOUT ARE UNDER 18.SO IF THEY GET HIT IN THE HEADAND SUFFER BRAIN DAMAGE THEIRDIAGNOSIS IS DEMENTIA DUE TOBRAIN DAMAGE WHICH WOULD BE THEDIAGNOSIS FOR THIS DEFENDANT,WHO, OH BY THE WAY, WITH REGARDTO MANIFESTATION BEFORE THE AGEOF 18, IT HAS BEEN A REQUIREMENTOF FEDERAL LAW THAT ALL STATEEDUCATIONAL SYSTEMS HAVE INPLACE SYSTEMS TO IDENTIFY ANDDIAGNOSE DEFENDANTS WITHRETARDATION AND PROVIDE THEMTREATMENT WHICH IS-->> YOU KNOW THE PROBLEM WITHWHAT WE HAVE BEFORE US AND WHATWE'VE HAD OVER THE YEARS, AS WEHAVE DISCUSSED, I GUESS IT ISINTELLECTUAL DISABILITY NOW, IS,THAT WE HAVE MAINTAINED THAT 70CUTOFF PERIOD.SO OFTEN DEFENDANTS OR JUDGESDIDN'T EVEN WANT TO HEARINFORMATION ABOUT THE ADAPTIVEFUNCTIONING AND THE ONSET OFAGE, EXCUSE ME, LET ME FINISH.BEFORE AGE 18, IF IN FACT THESCORE, THE I.Q. SCORE THAT WASPRESENTED WAS ABOVE 70.AND SO WHAT-- NOW WITH A I.Q.SCORE WE'VE GOT TO LOOK AT ALLOF THESE OTHER FACTORS.SO WHY IS IT MR. WALLS ENTITLEDTO A COURT LOOKING AT ALL THREEOF THOSE FACTORS?>> HE HAS HAD THAT EVIDENTIARY

HEARING.AND HE FAILS-->> WHAT DID THE TRIAL JUDGE SAYTHE AT END OF THAT EVIDENTIARYHEARING?>> AT THAT EVIDENTIARY HEARINGTHEY PRESENTED ONE WITNESS WHOTESTIFIED THAT HE HAD ADAPTIVEFUNCTIONING DEFICITS BEFORE THEAGE OF 18 AND NOTHING ELSE ANDADMITTED HE DIDN'T MEET THE I.Q.SCORE PRONGS.>> BUT HERE IS THE PROBLEM WHATWE'RE STRUGGLING WITH.WE APPRECIATE THE FRUSTRATION OFTHE STATE AND WE'RE FRUSTRATEDAS WELL SINCE WE WENT ALONG WITHTHE STATE SAYING IT IS A 70CUTOFF AND YOU DON'T THINK OFANYTHING ELSE.WE ARE DEALING WITH, DO YOUAGREE IT IS INTELLECTUALDISABILITY AT THE TIME OF THECRIME THAT'S THE CRITICALFACTOR?>> WELL I WOULD SUGGEST THATINTELLECTUAL DISABILITY SHOULDBE EXISTING FROM CHILDHOODONWARD AND CONTINUE TO THIS DAYBECAUSE IT IS ONLY SUPPOSED TOGET BETTER.YOUR I.Q. IS NOT SUPPOSED TOCHANGE AND SUPPOSED TO GETBETTER WITH EARLY INTERVENTION.>> HERE WE HAVE, SOMEBODY WHOHAD APPARENTLY HAD A 100 POINTAT 12, WHAT IS THE AGE?101, SORRY.101, THEN HAS A I.Q.-->> 102 AT 12.101 AT 14.>> I ELEVATED HIS I.Q. SCORE.AND THEN HAS A, MUCH LOWER I.Q.,I WOULD LIKE, AS A TRIER OF FACTTO UNDERSTAND IF IT'S ALL, THATHE FAKED, YOU KNOW, REMEMBER, AASSISTANT ATTORNEY GENERAL SAIDYOU CAN'T FAKE SMART.>> YES YOU CAN.>> I WOULD LIKE TO KNOW WHAT

HAPPENED TO THIS DEFENDANT WHOAT A CERTAIN AGE HAS A HIGHERI.Q. AND THEN HAS ALL OF THESEOTHER INDICATIONS OF BEINGSEVERELY, EMOTIONALLYHANDICAPPED, AND I THINK THIS ISTHE PROBLEM.THE JUDGE WAS STUCK ON A NUMBER,AND I, UNDER HALL, THE U.S.SUPREME COURT HAS TOLD US THESEARE INTERDEPENDENT FACTORS TODECIDE THIS ISSUE.>> WELL, U.S. SUPREME COURT HASTOLD YOU NEED TO CONSIDER ALLTHE PRONGS IF YOU HAVE AN I.Q.SCORE WITHIN THE STANDARD ERROROF MEASURE OF 70.THIS DEFENDANT-->> YOU THOUGHT, YOU KNOW WHAT?LET'S TRY TO HAVE, ANSWER.I THOUGHT AFTER ATKINS THISWOULD BE SOME SIMPLE ISSUE.WE WOULD CERTAINLY BE ABLE TOIDENTIFY THOSE DEFENDANTS LIKEMR. HALLIBURTON, LIKE MR. HALL,WHO WERE, WHAT WE CALLEDMENTALLY RETARDED NOW, CALLEDINTELLECTUALLY DISABLED.THAT THIS WASN'T GOING TO BE AMONUMENTAL UNDERTAKING BUT WENOW UNDERSTAND IT'S A MUCH MOREOF A OBJECTIVE BUT THERE IS ALSOA WHOLE PANOPLY OF FACTORS AND ITHINK JUDGES, THIS COURT WASMISUNDERSTANDING IT, WERE STUCKON THE I.Q. SCORE ALONE.THAT IS WHY I THINK THAT IF WEAGREE HALL IS AT RETROACTIVE,AND I REALIZE YOU DON'T THINKSO, WE OUGHT TO ALLOW THESEEVIDENTIARY HEARINGS?>> WELL, KEEP IN MIND THESE ARECASES WHERE WE'VE HADEVIDENTIARY HEARINGS.THESE AREN'T CASES-->> SO DID MR. HALL.HE HAD ONE AND IT WAS UNDER THEWRONG FACTORS AND THAT IS WHYMR. WALLS IS IN THE SAME POSTUREAS MR. HALL, ISN'T HE?

>> NO, BECAUSE MR.-- HE HAD HISRETARDATION.>> HE DIDN'T GET THE BENEFIT, HEDIDN'T FIGURE OUT HOW TO GETSUPREME COURT TO TAKE HIS CASETHE FIRST TIME?>> WELL HE PRESENTED EVIDENCETHAT HE WASN'T RETARDED.AND THIS DEFENDANT, WHILE THEYTALK ABOUT THESE PROBLEMS ASDEFENDANT HAD SINCE HE WAS ACHILD HE IS CONTINUINGLY BEINGEVALUATED.THE DIAGNOSIS IS NEVERRETARDATION.IT IS CONDUCT DISORDER.IT IS HYPERACTIVITY.>> WHY ISN'T IT JUST A BETTERVIEW THAT THIS DEFENDANT HAVETHE OPPORTUNITY TO HAVE THETRIAL JUDGE LOOK AT ALL THESEFACTORS, MAKE A DETERMINATION,THEN WE WILL HAVE NO DOUBTWHETHER OR NOT WE ARE GOING TOALLOW EXECUTION OF SOMEONE WHOIS INTELLECTUALLY DISABLED ORNOT?SIMPLY BECAUSE THAT IS SUCH,THAT IS SUCH A BAR, INTELLECTUALDISABILITY, IS SUCH A BAR TOIMPOSITION OF A DEATH SENTENCETHAT WE NEED TO BE SURE THATUNDER THESE CIRCUMSTANCES-- NOWI CAN TOTALLY AGREE THAT A TRIALJUDGE, MIGHT UNDER THESECIRCUMSTANCES WITH THIS, THESEHIGH-- FIND THAT HE IS NOTINTELLECTUALLY DISABLED BUT ITSHOULD NOT BE BASED ON SIMPLEFACT THAT HE HAD A I.Q. SCORE INTHE PAST OVER 75.>> WELL, BUT HE HAS TO SHOW THATHE HAD THE ONSET OF BOTH PRONGSBEFORE THE AGE OF 18 BECAUSEWHAT WE'RE TRYING TO DO ISDISTINGUISH THOSE PEOPLE WHOACTUALLY ARE RETARDED FROM THOSEPEOPLE WHO HAVE ACQUIRED BRAINDAMAGE.>> LETTING THE TRIAL JUDGE MAKE

THAT DETERMINATION.>> WE HAVE HAD A HEARING ANDUNDER NIXON THIS COURT ALLOWEDHIM TO PRESENT ALL EVIDENCEUNDER THE PRONGS.HE CLEARLY KNEW THAT AS THE ONLYWITNESS HE CALLED TESTIFIEDEXCLUSIVELY ABOUT HIS PRE-18ADAPTIVE FUNCTIONING DEFICITS.HE HAS HAD THE HEARING.HE PRESENTED NO EVIDENCEWHATSOEVER ON PRONG TWO BUT DIDTHE TRIAL JUDGE CONSIDER THATEVIDENCE?WHEN YOU SEE THAT THE TRIALJUDGE SAYS THAT HE HAD SCORESOVER 75 AT AGE 18, BEFORE AGE18.DID HE CONSIDER ALL OF THE OTHERTHINGS?>> IF HE DOESN'T MEET PRONGTHREE HE IS NOT RETARDED SO ITREALLY DOESN'T MATTER AND HE ISNOT-- OR THERE IS ANEXPLANATION, THIS PERSON ISBRAIN-DAMAGED THIS PERSON IN HISLATE TEENS STARTED ABUSINGDRUGS.THAT EXPLAINS THE I.Q. DROP INTHIS CASE.>> LET ME ASK YOU THIS QUESTIONBECAUSE IT GOES TO WHAT THE U.S.SUPREME COURT SAID IN ATKINSABOUT MENTAL RETARDATION,INTELLECTUAL DISABILITY.YOU SAY THAT IT IS REALLY AQUESTION OF, WERE THEY, WERETHEY BORN WITH A INTELLECTUALDISABILITY?IT ISN'T SOMETHING THAT IF THEYARE DEPRIVED OF A, AT A LATERAGE OF OXYGEN, AND THEIR I.Q.DOCUMENTED GOES FROM A, 101 DOWNTO 70, THAT THAT'S BRAIN DAMAGE?THAT CAN NOT BE CLASSIFIED ASINTELLECTUAL DISABILITY?AND I JUST, IF THAT'S THE CASE IWOULD LIKE TO HAVE AN EXPERTEXPLAIN THAT BECAUSE I DIDN'TUNDERSTAND THAT THAT WAS WHAT

THE U.S. SUPREME COURT WASSAYING.>> THE WHOLE POINT TO THEMEDICAL DEFINITION OFRETARDATION IS, IT IS ADEVELOPMENTAL DISABILITY.>> BUT IS THAT WHAT THEY SAID--I GUESS WHAT I'M LOOKING BACKON, THE U.S. SUPREME COURT MADEA DECISION, I KNOW, MENTALILLNESS BEING ABLE TO UNDERSTANDTHE CONSEQUENCES OF A CRIMEMAYBE THAN SOMEBODY THAT'S GOT ALOW I.Q.MAYBE WE NEED TO LOOK BACK ATATKINS TO UNDERSTAND THAT A U.S.SUPREME COURT WAS SAYING THISWAS SOME DSM WAY TO EVALUATE THEFACTORS AND YOU'RE SAYING IF WELOOK BACK AT ATKINS WE'LL SEETHAT?>> IF WE LOOK BACK AT ATKINSWE'LL SEE THEY ARE EXEMPTING THEMENTALLY RETARDED, NOT THEMENTALLY ILL, NOT THEBRAIN-DAMAGED.>> WHAT ARE THE REASONS, WHY ISIT, WHAT PRINCIPLE JUSTIFIESSAYING THAT PEOPLE WHO AREINTELLECTUALLY DISABLED SHOULDNOT BE SUBJECTED TO THE ULTIMATEPENALTY?>> WELL-->> WHAT IS THE UNDERLYING--THERE IS A REASONING PROCESSTHAT GOES ON THERE.WHAT IS THAT?AND WHY DOES THAT NOT EQUALLYAPPLY TO A PERSON WHO HASSUFFERED SOME DEVASTATING BRAININJURY, THE AT THE AGE OF 14,AND AT TIME THE CRIME ISCOMMITTED, HAS AN INTELLECTUALCAPACITY THAT IS NO DIFFERENTFROM SOMEONE WHO ISINTELLECTUALLY DISABLEDACCORDING TO-->> WELL THE REASON THE U.S.SUPREME COURT WAS CONCERNEDABOUT THE RETARDED THERE WAS A

NATIONAL CONSENSUS, THERE WASSTATUTES ABOUT THE RETARDED ANDTHEY WERE CONCERNED THESE AREPEOPLE WHO BY DEFINITION ARE NOTSUPPOSED TO BE ABLE TO LEARN ASWELL AS THE REST OF THE WORLD SOTHEY CAN EVER LEARN FROMEXPERIENCE AND CAN'T FUNCTIONTHE WAY THE REST OF THE WORLDDOES WHEREAS SOMEBODY WHO HASBRAIN DAMAGE-->> SOMEBODY WHO HAS THAT TYPE OFDEVASTATING INJURY COULDACTUALLY, IS, FORGETS EVERYTHINGTHEY LEARN BETWEEN THE AGES OF,UP UNTIL THEY WERE 14 OR 15WOULD STILL HAVE THAT, LACK THATCAPACITY TO MAKE A JUDGMENT.WE'RE NOT TALKING ABOUT THATTHEY'RE-- SO I'M NOT SUREYOU-- SO YOU'RE SAYING BECAUSEIT IS A NATIONAL CONSENSUS THATSOMEBODY WHO IS MENTALLYRETARDED CAN NOT BE SOMEBODYTHAT, THAT ACQUIRED THEIRINORDINATELY LOW I.Q. AS ARESULT OF A TRAUMATIC BRAININJURY?YOU'RE SAYING THAT'S THECONSENSUS IN THE MEDICAL WORLD?>> I'M SAYING THE CONSENSUSAMONG THE AMERICAN PEOPLE, WHICHIS WHAT WE LOOK AT, WHEN WE'REDOING AN EIGHTH AMENDMENTANALYSIS LOOKS AT THE CONSENSUSOF THE AMERICAN PEOPLE-- THEFACT THAT THERE WERE STATESPASSING STATUTES DECLARING THEDEATH PENALTY IMPROPER FORPEOPLE WHO WERE MENTALLYRETARDED.THE U.S. SUPREME COURT DECIDEDTO EXEMPT THE MENTALLY RETARDED.THEY HAVE NOT EXEMPTED THEMENTALLY ILL.THEY HAVE NOT EXEMPTED THEBRAIN-DAMAGED.AND THAT'S WHAT THIS DEFENDANTIS.THIS DEFENDANT IS NOT RETARDED.

HE'S BRAIN-DAMAGED.>> WELL YOU CAN COME WITHIN ALLTHREE OF THOSE CATEGORIES EVENTHOUGH YOU WOULD NOT BE IN THEINTELLECTUALLY DISABLEDACCORDING TO YOU.YOU COULD HAVE AN INDIVIDUAL WHOHAS TREMENDOUS I.Q., DOCUMENTEDUP THROUGH ELEMENTARY SCHOOL,THEN HAS A VERY SERIOUS MEDICALCONDITION, TEMPERATURE COMA, ANDTHAT, CAUSES IRREVERSIBLE BRAINDAMAGE AND THEN BEFORE 18, WOULDBE UNABLE, WOULD HAVE AN I.Q.OF, IN THAT SAME RANGE, WOULDHAVE THE INABILITY TO ENGAGE INADAPTIVE FUNCTIONS.AND ON SET IS BEFORE 18.SEEMS TO ME THAT, THAT YOURARGUMENT IS NOT BASED ON REALWORLD DISTINCTION.BUT THERE IS NO DISTINCTIONBETWEEN SOMEONE WHO HAS A NORMALLIFE UP TO A CERTAIN POINT ANDTHEN SUFFERS A TERRIBLE DISEASE,THAT PRODUCES THE SAME RESULTBEFORE 18.>> WELL THE REASON THE 18 ISTHERE IS NOT, SOME PLACES ICE21.WE'RE TRYING TO CAPTURE THEPEOPLE WHO ARE DEVELOPMENTALLYIN TROUBLE, NOT THE PEOPLE WHOARE-->> THAT IS WHY I'M ASKING BUTTHE UNDERLYING PHILOSOPHY.HOW IS A PERSON IN A CATEGORY IJUST DESCRIBED DIFFERENT THANSOMEONE WHO HAS AN I.Q. FROM THEOUTSET OF, WITHIN THAT RANGE?>> HOW IS THAT?>> YEAH.>> BECAUSE THERE AREN'T STATESPASSING STATUTES DECLARING THATWE'RE NOT GOING TO SUBJECT THESEPEOPLE TO THE DEATH PENALTY.THERE IS NOT A NATIONALCONSENSUS-->> THEY MEET THE CRITERIA.THEY HAVE AN INTELLECTUAL--

THEY HAVE MEASURED THEIRINTELLECTUAL CAPACITY AS BEINGSUBSTANDARD, BELOW, CORRECT?>> WELL THIS DEFENDANT DOESN'T,KEEP IN MIND.HE HAS ABOVE AVERAGE I.Q.>> ISN'T THAT THE KISE?YOU WOULD MEASURE I.Q. IN THESAME WAY FOR SOMEONE WHO HAD ASERIOUS ILLNESS AS YOU WOULDSOMEONE WHO HAS NOT?ADAPTIVE BEHAVIOR FROM THE SAMEPERSON THE SAME WAY.>> ADAPTIVE BEHAVIOR-->> WOULD YOU NOT MEASURE THEAGE, 18, 21, 41, WHATEVER NUMBERYOU WANT TO PICK, YOU WOULDMEASURE THAT THE SAME WAY,WOULDN'T YOU?>> WELL, YOU WOULD, BUT THE IDEAHERE IS WE HAVE AN EIGHTHAMENDMENT PROHIBITION AND YOUHAVE A CONFORMITY CLAUSE ON THEEIGHTH AMENDMENT.SO UNLESS THERE IS THIS NATIONALCONSENSUS THAT-->> WAIT, WAIT, WAIT.WE MAY HAVE A CONFORMITY CLAUSEBUT U.S. SUPREME COURT MAYBEHASN'T DECIDED THIS ISSUE WITHREGARD TO THE PERSON YOUDESCRIBED AND THE PERSON I HAVEDESCRIBED THAT DIFFERENCE.>> WHAT THEY HAVE SETTLED ISTHERE'S ONLY FOR THE MENTALLYRETARDED.THEY HAVE NOT DONE THE MENTALLYILL.>> THEY HAVE REJECTED THE CASEOF A PERSON I JUST DESCRIBED,THE CHILD WHO HAS SERIOUS,SERIOUS MEDICAL CONDITION THATRENDERS THEM IRREVERSIBLYBRAIN-DAMAGED?THEY HAVE DECIDED THAT, THAT ISWHAT YOU'RE TELLING US?>> NO, WHAT I'M TELLING YOU THEENTIRE POINT OF ATKINS WAS ANATIONAL CONSENSUS ABOUT THEMENTALLY RETARDED.

IT IS NOT A NATIONAL CONSENSUSABOUT THOSE PEOPLE THAT MEETTHOSE THREE.>> WHAT ABOUT THE NATIONALCONSENSUS, DOES THERE HAVE TO BESOME THING DEPRIVED OF OXYGENDURING BIRTH?WHAT IS IT?I HAVE NEVER QUITE UNDERSTOODTHAT.>> WELL-->> IT IS THE BRAIN DEVELOPMENTTHAT IS THE CAUSE FOR THEINTELLECTUAL DISABILITY, IS ITNOT?IN OTHER WORDS, WHAT DOESSOMEONE'S BRAIN LOOKS LIKE THATMEETS YOUR DEFINITION OFINTELLECTUAL DISABILITY VERSUSJUSTICE LEWIS'S EXAMPLE?>> I'M SAYING THAT THE PERSONSHOULD HAVE A DEVELOPMENTALDISABILITY-->> HOW DID THEY ACQUIRE IS WHATI'M ASKING?DOES IT HAVE TO BE BEFORE BIRTH?DOES IT HAVE TO BE BEFORE BIRTH?>> I CAN'T ANSWER BECAUSE THEREIS NO MEDICAL ANSWER TO THAT WEJUST KNOW IT IS SUPPOSED TO BEDEVELOPMENTAL AND NOT ANACQUIRED DISABILITY.>> WELL, DEVELOPMENTAL MEANS ITOCCURRED AFTER YOU WERE BORN?ARE YOU BORN INTELLECTUALLYDISABLED, THAT IS WHAT I'MASKING YOU?SO THAT A CHILD AT SIX MONTHSOLD, HAS HIGH FEVER ANDTHEREAFTER, OR IS IT THEDIAGNOSIS, THE MAGIC DIAGNOSISOF A, OF A DOCTOR AND THEN FORTHOSE POOR PEOPLE THAT DON'T GETTHAT DIAGNOSIS, THEY'RE OUT?>> WELL, KEEP IN MIND-- THISDEFENDANT WAS OVER AND OVER ANDOVER AGAIN THAT THATHOSPITALIZATION FOR 90 DAYS WHENHE IS GIVEN AN EXTENSIVEPSYCHIATRIC TESTING THAT RESULTS

NOT IN A DIAGNOSIS OFRETARDATION BUT A DIAGNOSIS OFBRAIN DAMAGE AND BIPOLARDISORDER OCCURS WHEN HE ISALMOST 18 YEARS OLD.>> YOU KNOW, WHAT WAS HEHOSPITALIZED FOR?>> FOR MAKING THREATS TOTEACHERS AND ATTACKING PEOPLE.>> SO YOU'RE LOOKING FOR ADIAGNOSIS THAT IS GOING TO HELPTO SEE IF YOU CAN REHABILITATE?IN OTHER WORDS, I DON'T KNOW,BECAUSE WE DIDN'T HAVE THISFULLY-DEVELOPED HEARING TOEXPLAIN WHY THE DIAGNOSIS WASTHAT VERSUS INTELLECTUALDISABILITY.>> WE DID BECAUSE WE HAD APENALTY PHASE WHERE THISEVIDENCE WAS PRESENTED.WE THEN HAVE A RETARDATIONHEARING WHERE THE DEFENDANT WASPERMITTED TO PRESENT ANYEVIDENCE HE WANTED AND DIDN'TPRESENT IT.AND WE DON'T EVEN HAVE ANALLEGATION THAT HE HAS EVIDENCEIN THIS MOTION, MOTIONS FORPOST-CONVICTION RELIEF REFERS TOBE FULLY PLED WHEN THEY'REFILED.WE HAVE A GIVE ME A NEW HEARING.>> WAS THIS HEARING-->> IT WAS JUST AFTER CHERRY WASORDERED BEFORE CHERRY OCCURREDAFTER CHERRY.>> AFTER CHERRY SAID THERE WASTHIS BRIGHT LINE CUTOFF?>> THE HEARING JUST OCCURREDAFTER CHERRY, JUST A MONTH ORTWO AFTER CHERRY BUT HE CALLEDDR. TOOMER, THE ONLY WITNESS HECALLED, TO TESTIFY ABOUTADAPTIVE FUNCTIONING DEFICITSBEFORE THE AGE OF 18.HE CLEARLY KNEW HE COULD PRESENTTHIS EVIDENCE.HE JUST AS CLEARLY DIDN'T.HE HAS HAD HIS HEARING AND THE

STATE RESPECTFULLY REQUESTS THATYOU AFFIRM.>> THANK YOU.>> JUSTICE PARIENTE, DR. TOOMERTESTIFIED THAT MR. WALLS HASADAPTIVE DEFICITS IN ADULTHOODAND ADAPTIVE DEFICITS INCHILDHOOD IN 13 DISTINCT AREASOF ADAPTIVE DEFICITS AND THEYALL PRE-AGE 18.THAT IS IN THAT HEARING.>> EXPLAIN WHAT IS THEDIFFERENCE BETWEEN A DIAGNOSISOF INTELLECTUAL DISABILITY.>> YES.>> AND A BRAIN DAMAGE?>> YES.I WILL GET TO THAT LET ME TELLYOU ONE MORE THING.>> YOU DON'T HAVE A LOT OF TIME.>> ONE MORE THING ABOUT THE LASTHEARING, DR. TOOMER WAS ASKED ONCROSS-EXAMINATION HE DOESN'TMEET THE CHERRY TEST BECAUSE ALLOF HIS I.Q.s ARE ABOVE 70.DR. TOOMER SAYS, THAT'S RIGHT.THAT IS WHY YOU HAVE THE OPINIONOF NOT MENTAL RETARDATION.-- PROCEEDING AND THIS COURTAFFIRMED SAYING THERE IS NOSCORE UNDER 70.YOU NEVER HAD ROBUST ANALYSIS OFALL THREE FACTORS, NEITHER ATTHE FIRST HEARING AND NOT AT THESECOND HEARING.NOW JUSTICE CANADY AND JUSTICELEWIS IN RESPONSE TO YOURQUESTIONS, AND YOU, JUSTICEPARIENTE, THIS RECORD HASN'TBEEN DEVELOPED IN THIS CASE BUTTHERE ARE SORTS OF REPORTEDOPINIONS WHAT TRIGGERS ADAPTIVEDEFICITS PRIOR TO THE AGE OF 18.THEY ARE CALLED PRECIPITATINGFACTORS AND AMONG THOSE FACTORSARE NEGLECT, ABUSE, AND HEADINJURY.SO YOU CAN HAVE THE KID WHO ISBORN NORMAL, SO TO SPEAK, TAKESPAINT CHIPS AND BY THE AGE OF 15

IS WITHIN THAT ONSET RANGE.>> WILL THEY DIAGNOSE THATPERSON AS INTELLECTUALLYDISABLED OR BRAIN DAMAGED?>> THOSE PEOPLE WOULD BEDIAGNOSED AS INTELLECTUALLYDISABLED AND THERE IS THIS ISSUEIS BRAIN DAMAGE DIFFERENT THANINTELLECTUAL DISABILITY?INTELLECTUAL DISABILITY IS AFORM OF BRAIN DAMAGE.THAT IS WHAT THE EXPERTCONSENSUS NATIONALLY IS TODAY.THAT IS WHAT THE AAID SAYS, THATIS WHAT THE DSM SAYS.IT IS A FORM OF BRAIN DAMAGE.YOU CAN'T SPLIT HAIRS SAY TOYOURSELVES THIS IS SPECIALDIFFERENT KIND OF THING.-- BRAIN DAMAGE IF YOU HAVE ASUBSTANTIAL HEAD INJURY.>> WHAT SHE WAS REALLY SAYINGWAS, BRAIN TRAUMA THEN?>> BRAIN TRAUMA THAT CAUSESADAPTIVE DEFICITS PRIOR TO ATEEN IS-->> WE'RE TALKING ABOUT AFTER AGE18.>> AFTER AGE 18 AND THAT IS THEFINAL POINT I MAKE BEFORE I RUNOUT OF TIME.THAT AT THE AGE OF 23 OR 24DR. LARSEN TESTS MR. WALLS ANDTESTIFIES HIS I.Q. IS 72.YOU HAVE NO EVIDENCE, ZEROEVIDENCE, OF A HEAD INJURY ORDEMENTIA BETWEEN AGES 18 AND AGE23.THAT EXPLANATION FOR THAT I.Q.SCORE DOES NOT EXIST ON THISRECORD.MR. WALLS IN FACT WAS ARRESTEDAT 19.SO THERE IS NOTHING AFTER 18THAT EXPLAINS THAT I.Q.IT HAD TO GO BACK TO THE AGE OFONSET.YOUR HONORS, THANK YOU VERYMUCH.