MARSHAL: PLEASE RISE . HEAR YE.HEAR YE.HEAR YE.THE SUPREME COURT OF FLORIDA IS NOW IN SESSION. ALL WHO HAVE CA USE TO PLEA, DRAW NEAR, G IVE ATTENTIO N AND YOU SHALL BE HEAR D. GOD S AVE THESE UNITED ST ATES , THE GREAT STATE OF FLO RIDAAND THIS HOW SOONABLE COURT. -- AND THIS HONORABLE COURT. LADIES AND GENTLEMEN, T HEFLORIDA SUPREME COURT.PLEASE BE SEATED.
CHIEF JUSTICE: GOO D MORNING LADIES AND GENTLEMENAND WELCOME TO THE FLO RIDASUPREME COURT. THE FI RST CASE O N THIS MORNING'S DOCKET IS TROTTER VERSUS STATE OF FLORIDA . MR. CANON , YOU M AY PROCEE D.
M A DAM CHIEF JUST ICE , ASSOCIATE JUSTICES , MY NAME IS P ETER CANNON ON P AF MELVIN TROT TER . MAY IT PL EASE THE COURT. THE STATE STA NDS BEF ORE T HIS SUPREME COURT DENYING THAT IT FOUND MR . TRO TTER GUILTY 30 YE ARS AGO , PURSUANT T O LAW AND RELYINGLATION. 30 YEARS AGO THE STATE OF FLORIDA FO UND MR . TROTTER DECLARED RETARDED BY LAW . IT PLACED H IM IN EMR CLASSES AND EDUCATED HIM SO HE C OULDBECOME A PRODUCTIVE MEMBER OF SOCIETY TO FIG HT HIS MENTAL RETARDATION.
MR . CANON , WE ARE HER E AFTER A TR IAL COURT'S DETERMINATION THAT HE WAS NOT MENTALLY RETA RDED , CORRECT?
CORRECT.
SO IN THE LI GHT MOST FAVORABLE TO THE STATE , WHATWAS THE EVIDEN CE CONC ERNING HIS ME NTAL RETARDATION ?
WELL , CONSIDERING THE TRIAL COURT'S ORDER , THE EXPERTS THAT WERE CALLED, FOUND THAT MR . T ROTTER IS NOT MENTALLY RETARDED TODA Y. HOWEVER , UNDER ATKINS , U NDER OUR R ULE , THAT IS NOT RELEVANT , WHETHER MR . TROTTER IS MENTALLY RETARDED TODAY IS TOTALLY YOU KNOW , IS TOTALLY UNRELATED TO WHETHER HE WAS RETARDED AT THE T IME OF THE OFF ENSE AND WHETHER HE WAS RETARDED PRIOR TO THE AGE OF 1 8.
DO WE ORDINA RILY THINK OF MENTAL RETARDATION A S SOMETHING THAT COME S AND GOES , OR CHANGES? IS THAT , DID ANY OF THE EXPERTS IN THIS CASE TESTIFY THAT THIS IS A CHANGING CONDITION, BECAUSE ISN'T THAT ON E OF THE UNDERPINNINGS OF THE U .S. SUPREME COURT 'S DEC ISION IN AC INSIDE, IS THAT THIS IS A -- IN ATKINS , IS THAT T HIS IS A PERM ANENT CONDITION THAT, THE DEFE NDANT REALLY HAS NO CONTROL OVER , A NDTHAT BECAUSE OF THAT IMPAIRMENT, THAT THE D E ATH PENALTY CANNOT B E CONSTITUTIONALLY IMPOSED , S O I AM HAVING A LI TTLE DIFFICULTY W ITH THAT PROPOSITION, THAT BECAUSE ATSOME POINT A N EXAMINER OR EXPERT OR ADMINISTRA TIVE BODY OR WH ATEVER , DETERMINED THAT THERE MIGHT BE MENTAL RETARDATION . IN FACT, IN THIS CASE , IS N'T IT COR RECT THAT A NUMBER OF MENTAL HE ALTH EX PERTS TESTIFIED AND FO RMED THE BASIS, THEN , OF THE TRIAL COURT'S CONCLUSION THAT THE DEFENDANT IS NOT MENTALLY RETARDED, A SUBSTA NTIAL NUMBER OF MENTAL HEA LTH EXPERTS.
CORR ECT , AND GOING B ACK , MR IS A VERY DIFF ICULT DIAGNOSIS. THERE ARE TH RE E COMPONENTS. THE TWO THAT WE HAVE THE MOST TROUBLE WITH , WH ETHER THE IQ S CORES FALL WITHIN THE RANGE AND WHETHER THAT PERSON HAS ADAPTIVE SKILLS , THOSE DO CHAN GE, AND THEY ARE FL UI D . WE LI KE TO THINK THAT IQ IS STAT YOU CAN, AND THAT IS WHAT THE -- IS STATIC , AND THAT IS WHAT THE SUPREME COURT SA YS. IF CORRECT, THE CRYSTALIZED G , THE INTELLIG ENCE O F SOMEBODY, CAN OR U SUALLY DOES STAY STATIC. HOWEVER, THERE ARE CERT AIN ENVIRONMENTAL FACTORS , AND ANY PARENT WHO HAS A MENTALLY RETARDED CHILD W ILL TELL YOU THAT CHANGES, A NDTHAT IS WH Y WE HAVE S UCH PERHAPS, AND ON E OF THE PROGRAMS THAT THE STATE OF FLORIDA HAS RIGHT NOW FOR MR . TROTTER IS DEATH ROW , AND A PERSON ON DEATH ROW IS IN THE HIGHEST STRUCT URED ENVIRONMENT IN OUR SOCIETY.
CHIEF JUSTICE: L ET'S G ETBACK TO THE FACTS OF THIS CASE. YOU MADE A VERY B ROAD STATEMENT THAT THE STATE OF FLORIDA HAD DECLARED HIM TO BE MENTALLY RETARDED , BUT , AND THE TRIAL COURT , IN A VERY THOR OUGH ORDER , SPECIFICALLY TALKED A BOUT THE 19 76 FINDINGS OF , IT WASDOCTOR, I AM SURE YOU KNOW WHICH DOCTOR, THAT THEY FOUND HIM TO BE NORMAL AND MATURE FOR HIS AGE , ABLE TO FOLLOW COMP LEX VER BAL DIRECTIONS AND SO ON , AND SO THAT EVEN RETROSPECTIVELY , LOOKING AT WHAT WAS THERE BEFORE 1 8, IT WASN'T AS IF THIS WAS SOME BODY THAT WAS JUST SIM PL Y FOUND MENTALLY RETARDED AND THEN THERE WAS NO DEBA TING THAT THROUGHOUT HIS YOU NGER YEARS. DO YOU AG REE WITH THAT?
WELL , THAT WO ULD BE THE TESTIMONY OF DR . PINKARD .
CHIEF JUSTICE: THAT IS IMPORTANT, BECA USE DR . PINKARD IS THE DOCTOR THAT LOOKED AT HIM BEFORE HE WAS 18, SO, AGAIN , YOU STA RTED WITH THIS BROAD STATEMENT ABOUT WHAT HAPPENED 30 YEARS AGO, SO I WA NTED YOU TO, TO DRAW ATTE NTION TO THAT FINDING THAT, ALSO , WAS THERE PRE-18.
CORRECT. PRE-18, THERE WERE , S NAG WE HAVE BEEN NEGLECTING IN T HIS CASE, WHEN MR . TROTTER WAS BARELY 14 YEARS OLD , HE S CORED TWICE WITHIN THE MENTALLY RETARDED A GE. WE HAVE THOSE IQ SC ORES. UNRELATED TO DR . PI NKARD 'S SCORE OF 88 , 69 AND AROUND 72. THOSE SCORES HAVE NOT BEEN TOUCHED BY ANY EXPERTS.
CHIEF JUSTICE: BUT THEY WERE EXPLAINED , BECAUSE APPARENTLY THIS IS A YOUNG MAN THAT HAS NOT BEEN PUT IN SCHOOL UN TIL HE WAS NINE YEARS OLD, AND THERE WERE OTHER ISSUES OF DEVELOPMENTAL DELAYS, SO ALTHOUGH, A GAIN , YOU ARE N OTQUESTIONING WHETHER THIS IS A QUESTION OF BRAIN DYSFUNCTION OR SI MPLY THEFACT OF DELAY BECAUSE HE HAD BEEN BE LA TELY PLACED IN SCHOOL.
CORRECT , BUT THE AMR AND VARIOUS OTHER ORGANIZATIONS , THAT IS ONE OF THE FOUR R ISK FACTORS , WHICH IS ED UCATION , BIOLOGICAL, SOCIAL , AND SO FORTH. THAT, WE DON'T KNOW WHAT CAUSE MR.THERE ARE A VARI ETY OF CONDITIONS THAT CAN CAUSE MR. ALL THAT WE HAVE AS OUR DEFINITION, IS THE IQ SCORE, THE ADAPTIVE SKIL LS AND ONSET. WHATEVER CAUSE THAT , THAT PERSON IS MR.NOW , WE DO , WE , ALSO , DR . PINKARD DID TE STIFY AB OUT DIAGNOSEIES THAT HE MADE ABOUT INAPPROPRIATEPERSONALITY, AND THAT WOULD FIT UNDER THE DEF INITION OF MR.
CHIEF JUSTICE: NOW, I UNDERSTAND THAT YOU HAVE TO ARGUE AS FORCEFULLY AS YOU CAN FOR YOUR CL IENT , BUT EVEN IF THERE WAS A FINDING THAT THERE WAS MENTAL RETARDATION ON SET PRE -18 , THAT IS NOT THE END OF THE ATKINS AND THE STATE OF FLORIDA, AND THIS COURT 'S, AS MA NDATED B Y THE LEGISLATURE'S TEST, AS TO WHETHER SOMEB ODY IS MENTALLY RETARDED, CORRECT? THERE IS ADAPTIVE SKILLS ASPECTS. WHAT IS THE TESTIMONY O N THAT, IN THE LIGHT MOST FAVORABLE TO THE STATE , ABOUT HIS ADAPTIVE SKILLS AND HOW IT RELATED TO ANY ALLEGED MENTAL RETARD ATION?
THE LIG HT MOST FAVORABLETO THE STATE , P R IOR TO 18 HE WAS EX ACTLY WHAT YOU NOTED , MADAM CHIEF JUSTICE , WHICH WAS, WAS IT BECAUSE OF HIS BEING PLACED IN SC HOOL SO LATE? HIS HORR IBLE, HOR RIBLE UPBRINGING, LI STEN ENVIRONMENT.IF I AM ANSWERING YOUR ANSWER CORRECTLY , HO WEVER , WITH THAT ANSWER WE L OOK BACK AND SEE, WELL , HOW DID HE DO, ONCE HE WAS IN HIS EMR CL ASSES , EMOTIONALLY , MENTALLY RETARDED CLAS SES. HE WAS DOING FINE. ONCE HE WAS TAKE N OUT AND PLACED BACK INTO RE GULAR CLASSES , HE STARTED FA ILING AGAIN.HE COULD NOT KEEP UP WITH THE REGULAR STUDENTS , AND THEN HE WAS PLACED BACK IN. THESE EMR CL ASSES WERE NOT JUST SLOWER CLASSES AND SO FORTH. THEY WERE DESI GNED FOR --
CHIEF JUSTICE: I CAN'T HELP BUT FEEL THAT YOU ARE STILL PICK ING THE PART T HAT FAVORED YOU THAT WE ARE HERE , AS JUSTICE CANTERO SAID , TO REVIEW A TRIAL COURT'S ORDER THAT MADE FIND INGS OF FACT , BASED ON , AS JUSTICE ANSTEAD SAID, NUMER OUS EXPE RTS THAT DISPUTE WHAT YOU ARE SA YING , AND CERTAINLY AS FAR AS HIS ADAPTIVE FUNC TIONING . AND SO HOW DO YOU GET AROUND THAT, I GUESS?
WELL , WE, ALSO, HAVE THE REPORT THAT WAS PLACED INTO EVIDENCE OF DR . LORRENTE , WHICH WAS C ITED B Y B OT H DEFENSE AND THE ATTORNEY GENERAL.I WOULD LIKE TO STATE , W ITH REGARDS TO THEIR STATEMENT IN THEIR BR IEF, WITH REG ARDS TO, EXCUSE ME , DR . LORRENTE'S TESTIMONY, THEY CITE A PARAGRAPH WHERE HE GOES THRO UGH AND TH ERE IS DIFFICULTY WITH THIS DIAGNOSIS, AND I AM GOING TO BE CANDID AND AD MIT THAT M R IS A DIFFICULT DIAGNOSIS, AND WITH REGARDS TO MR . TROTTER , THIS IS A DIFFICULT DIAGNOSIS. HOWEVER, WHEN THEY G O THROUGH DR. L ORR OR - - LORRENTE STATES, WELL , WE DON'T KNOW WHAT CAUSED HIS ADAPTIVE DEL AYS . IT COULD HAVE BEEN BEC AUSE OF HIS LATE SCHOOLING AND SO FORTH.
CHIEF JUSTICE: I AM LOOKING AT 19 AND 20 OF THE TRIAL COURT ORDER BEGI NNING WITH DR . PINKARD SAYING HE WAS NOT SUFFERING FROM PSYCHOLOGICAL COMPLE X. HIS EMOTIONAL DEVELOPMENT WAS NORMAL AND MATURE FOR A YOUNGSTER FOR HIS AGE. DR. C ROPP, WHO LOOK ED AT EVERYTHING, SAID THAT HE FOUND THAT HE WASN'T MENTALLY RETARDED AND DR . LLORENTE SAID , THOUGH , TALKED ABOUT HIS OTHER SKILLS, SUCH AS CONCEPTION , CONCEPTUAL REAS ONING IN MY OPINION ARE NOT CONSIS TENT WITH MENTAL RETARDATION , AND HE WE NT ON AND ON , SO H E , ALSO, FOUND N O DEFI CIT IN ADAPTIVE FINDINGS, WHICH IS ANOTHER FUNC TIONING , WHICH IS ANOTHER PRONG THAT YOU HAVE TO MEET , EVEN IF YOU GET BY THE ONSET BEFORE 18, THAT IS CUR RENT , THE ADAPTIVE FUNCTI ONING OF THE PERSON AFTER AGE 18.
AFTER 18 , IT IS IRRELEVANT. ONCE WE HAVE ESTABLISHED M R BEFORE THE AGE OF 18 , W E DON'T SAY, OKAY, NOW HE IS RETARDED BACK BEFORE 18. IS HE RETARDED NOW .
CHIEF JUSTICE: YOU HAVE THE I Q SCO RE THAT MAY S HOW MENTAL RETARDATION, BU T WHAT ARE THE OTHER TWO PR ONGS THAT HAVE TO BE MET, IN ORDER TO FIND MENTAL , THAT THIS IS , A GAIN , NOT AS A MITIGATOR.
SU RE.
CHIEF JUSTICE: BUT AS TO WHETHER THEY ARE NOT IN THIS STATE EXECUTE SOME BODY W HOIS MENTALLY RETARDED. WHAT ARE THE OTHER T WOPRONGS?
WE HAVE TO SHOW T HAT THERE ARE DEFICITS IN ADAPTIVE FUNC TIONING - -
CHIEF JUSTICE: WHEN? BEFORE 18 OR NOW?
BEFORE 18.
CHIEF JUSTICE: NOTHING RELATES TO HOW THE PERSON DOES AS AN ADULT?
ABSOLUTELY NOT.
WHERE DOES IT SAY THAT, IN THE STATUTE OR SUPREME COURT CASES THAT THAT DYSFUNCTIONING HAS TO BE TAKEN BEFORE 18?
THAT IS CL EAR IN AT KINS.
IT SEE MS TO ME WHAT IS CLEAR IS ONSET HAS TO BE BEFORE 18.
CORRECT.
THAT IS THE ONLY PRONG , FROM WHAT I READ, THAT DETERMINES MENTAL RETARDATION BEFORE 18. EVERYTHING ELSE, THE IQ SCORE CAN BE DETERM INED AFTER 18, AND THE ADAPTIVE FUNCTIONING CAN B E DETERMINED AFTER 18. IT IS ONLY THE ONSET THAT IS BEFORE 18.
IN ONSET , YOU HAVE TO HAVE THE IQ SCORE , WHICH IS THE INTELLIGENCE , TWO STANDARD DEVIATIONS BE LOW, AND THE ADAPTIVE SKILLS BEFORE 18.
RIGHT. YOU HAVE ONLY PROVEN O NEPRONG.IF YOU PROVE ADAPTIVE FUNCTIONING AND IQ SCORES BELOW 70 BEFORE 1 8 , YOU HAVE ONLY PROVEN ONSET BEFORE 18. YOU HAVEN'T PROVEN THE OTHER TWO PRONGS , AND IT SEEMS TO ME THAT TRIAL COURT BASED ITS FINDINGS ON SE VERAL EXPERTS. I KNOW YOU QU OTED D R . EURAN. E , WHICH WAS A DEF ENSE EXPERT. YOU HAVEN'T MENT IONED DR . GAMASH, WHO WAS A STATE EXPERT THAT SAID HE FOUND NO ADOPTIVE BEHA VIOR SUFFICIENT TO MEET DIAGNOSICH MENTAL CRITERIA.
YES, AND THIS IS A PROBLEM WITH THE TRIAL COURT'S ORDER. FINDINGS OF FACT HAVE TO BE GIVEN GREAT WEIGHT. HOWEVER, WHEN THE TRIAL COURT APPLIES THE LA UER OWNSLY, WHICH IS WHAT THEY HAVE -- WHEN THE TRIAL COURT APPLIES THE LAW ERRONEOUSLY , WHICH IS WHAT THEY HAVE DONE HERE, IS ESTABLISHING THAT THE MR WAS PRESENT BEFORE THE AGE OF 18. ONCE THAT IS DONE, THEN THAT PERSON IS MENTALLY RETARDED.
CHIEF JUSTICE: I THINK WE WILL HEAR FROM THE STATE ON THIS, BUT MY UNDERSTANDINGIS THAT YOU DON'T W ANT SOMEBODY WHO, REALLY , ALL O F A SUDDEN BE LATE EDLY BEC OMES MENTALLY RETARDED. YOU WANT THAT SUB STANTIALKNOWLEDGE THAT, AS A CH ILD , THIS P E RSON WAS DEEMED T O BE MENTALLY RETARDED , BUT IF THE PERSON IS 40 YEARS OLD , I DON'T THINK THERE IS ANYTHING IN WHAT THE SUPREME COURT INTENDED OR THE LEGISLATURE, IN M AKING SURE WE DON'T , EXECUTE MENTALLY RETARDED INDIVIDU ALS, THAT WOULD NOT HAVE US LOOK A T HOW THAT INDIVIDUAL DID FROM 18 UNTIL THE TIME OF THE CR IME.
WELL, TWO POINTS ON THAT. FIRST, WE HAVE TO REMEMBER THAT 921.137 , C AME OUT PREATKINS. THE LEGISLATURE DID NOT HAVE THE BENE FIT OF ATKINS . HOWEVER, WHEN WE LOOK AT ATK INS, IT I S JUST NOT THE EXECUTION OF MENTALLY RETARDED. WHY WO ULD ATKINS DECIDE IT THAT WAY. VARIOUS FACTORS. ONE , MO RAL CULPABILITY . WHAT WAS THE CULPABILITY OF THE PERSON AT THE TI ME OF THE CRIME. TWO - -
CHIEF JUSTICE: WITH THAT IN MIND, WHY WOULDN'T YOU WANT TO KNOW WHETHER THEY CURRENTLY, AT THE TIME OF THE CRIME , WERE DEE MED TO BE MENTALLY RETARDED?
WELL , BECAUSE IF WE READ ATKINS, WE DISC USS MORAL CULPABILITY WITH REGARDS TO OTHER DEFENDANTS SEN TENCEDAT THAT TIME, NOT EXEC UTION . THEY TALKS ABOUT, WELL , W E SHOULDN'T BE EXECUTING THOSE WHO ARE MENTALLY RETARDED , BUT THE MORAL CULPABILITY AT THE TIME, FOR EXAM PLE T HEY GO INTO DISCUSSION O F CODEFENDANTS AND SO FORTH. HOWEVER, ONE OF THE MOST IMPORTANT DISCUSSIONS IN ATKINS IS THE FACT THAT THE CURRENT PROCEDURAL PROTECTIONS WE HAVE NOW UNDER THE CONSTITUTION , UNDER THE R ULES , ARE INSUFFICIENT TO PROTECTTHOSE WHO ARE MENTALLY RETARDED DURING TRIAL, AND THAT IS ONE , AGAIN , ANOTHER ONE OF THE REASONS WHY ATKINS WAS DE CIDED THAT WAY , IS BECAUSE THOSE WHO ARE MENTALLY RETARDED HAVE DIFFICULTY IN COMMUNICATING WITH THEIR ATTORNEYS. THEY ARE SUBJ ECT T O ATTACK BY THE PROSE CUTION.
CHIEF JUSTICE: HOW OLD WAS THIS DEFEND ANT, WHEN H E COMMITTED THE CRI ME?
25 YEARS OLD.
CHIEF JUSTICE: ARE YOU SAYING, AGA IN, THAT YOU DO NOT LOOK AT AN YTHING BETWEEN 18 AND 2 5?
ONCE YOU HAVE ESTABLISHED THAT HE WAS MENTALLY RETARDED PR IOR TO 1 8 , T HAT IS IT. YOU CA NNOT BECOME , AND NO EXPERT CAN TELL YOU THAT , ONCE YOU ARE RETARDED , YOU BECOME UNRETA RDED . THAT IS IMPOSS IBLE.
ISN'T THAT EXA CTLY WHAT EXPERTS HAVE SAID , BECAUSE IN THIS CASE , BECAUSE IF YOU ARE CORRECT THAT HE WAS MENTALLY RETARDED BEFORE 18 , THESE EXPERTS HAVE UNEQUIVOCALLY OR AT LE AST SOME OF THEM HAVE SAID T HAT HE IS NOT MENTALLY RETARDED NOW. SO --
CORRECT.
SO ASSU MING YOUR PREMISETHAT HE WAS MENTALLY RETARDED BEFORE 18, THAT IS EXACTLY WHAT THEY ARE SAYING , THAT HE IS NOT MENTALLY RETARDED N OW.
THAT IS INCORRECT , AND THAT IS ONE OF THE REAS ONS THAT THE COURT'S ORDER? CORRECT. THAT DR . G AMASH FO CUSED ALMOST EXCLUSIVELY O N H ISCURRENT MENTAL STATE, A NDTHAT IS INCORRECT .
DOESN'T ATKINS FOCUS ON THE CULPABILITY OF THE DEFENDANT, AT THE TIME OF THE OFFENSE? THAT IS M UCH LIKE THE ANALOGY TO THE SUPREME COURT RULING , THAT NO PERSON THAT WAS UNDER THE AGE OF 18 , ATTHE TIME OF THE OFFENSE , CAN BE EXECUTE ED. ISN'T THE MENTAL RETARDATION RULING IN ATKINS , SUBSTANTIALLY THAT , BECAUSE OF THE UNDERSTANDING OF A LACK OF CULPAB ILITY BA UFT MENTAL DEFECT OF RETARD - - BECAUSE OF THE MENTAL DEFECT OF RETARDATION , THAT WE ARE RULING THAT NO BODY THAT WAS MENTALLY RETARDED AT THE TIME OF THE OFFE NSE , CAN B E EXECUTED, AS OPP OSED TO THESE OTHER DISCUSSIONS? ISN'T THAT THE CORE RU LING OF ATKINS?
ABSOLUTELY . SIMMONS AND ATKINS .
ISN'T THE FOCUS , THEN , --
TOGETHER.
-- ON THE CONDITION OF THE DEFENDANT AT THE TIME OF THE OFFENSE?
THAT IS WHAT I A M TR YING , EXACTLY. THAT IS THE ARGU MENT . HOWEVER, IF THE PERSON WAS MENTALLY RETARDED --
THAT IS WHOSE ARG UMENT ? IS THAT YOUR ARGU MENT?
WELL, THE ARGUMENT IN SIMMONS AND ATKINS , ABOUT THE MORAL CULPABILITY OF AN INDIVIDUAL AT THE TIME OF SENTENCING, WE ARE NOT TALKING ABOUT EXECUTION O R SO FORTH , BUT AT THE TIME OF SENTENCING, ATKINS AND SIMMONS DO FIT TOGETHER . HOWEVER , BECAU SE OF THE TEST TO ESTA BLISH MENTAL RETARDATION , DECLARES THAT A PERSON HAS TO BE MENTALLY RETARDED BEFORE THE AGE OF 18. THESE, AGAIN, IT IS CONFUSING. MR IS A VERY DIF FICULT DIAGNOSIS, BUT NOT ONE --
CHIEF JUSTICE: I J UST WANT TO REMIND YOU , YOU CAN COMPLETE YOUR ANSWER HERE BUT YOU ARE USING A LOT OF YOUR REBUTTAL TIME.
YE S. I WILL GO AHEAD AND DEFE R TO THE STATE NOW.
CHIEF JUSTICE: THANK YOU. CHIEF MR. LAND RY , BEFORE Y OUSTART I NEGLECTED TO STATE THAT JUSTICE QUI NCE IS RECUSED ON THIS CASE, G IVING SOME INDICA TION OF THE AGEOF THE CASE , SO WITH T HAT YOU MAY PROC EED .
THANK YOU, YOUR HONOR. MAY IT PLEA SE THE COURT. BOB LAN DRY REPRESENTING THESTATE OF FLORIDA IN THIS APPEAL. WITH RESPECT T O THE DISCUSSION THAT WE HAVE HAD SO FAR, IN TE RMS OF WHEN I S IT IM PORTANT TO CONS IDER THE DEFENDANT'S RETARDATION. OBVIOUSLY WHAT ATKINS V ERSUS VIRGINIA IS ALL ABOUT IS CONCERNING WHETHER OR NOT THE EIGHTH AMENDMENT IS VIOLATED BY THE STATE SEEKING TO EXECUTE SOME ONE WHO HAS , WHO IS MENTALLY RETARDED AND WHO WAS MENTALLY RETARDED AT THE TIME OF THE CRIME. OBVIOUSLY WHAT THE COURT'S CONCERN IS , IS THE CULPABILITY OF THE DEFENDANTAT THE TIME OF THE TRIAL, A T THE TIME OF THE COMMIS SION OF THE OFFENSE . CERTAINLY THE CU RRENT LEGISLATION , 921.137 T ALKSABOUT THAT THE DEFENDANT BE SHOWN TO HAVE MENTAL RETARDATION. SO OBVIOUSLY WE ARE TAL KINGABOUT A SIT UATION OF WHAT IS THE STATUS OF THE DEFENDANT, AT THE TIME OF THE COMMISSION OF THE OFFENSEAND AT THE TIME OF THE TRIAL . NOW , THE THREE-PRONG TEST OF MENTAL RETARDATION AS WE HAVE HEARD , IS THREE P ART. IT IS A 3-PR ONG TEST , INTELLECTUAL FUNCTIONING, ADAPTIVE BE HAVIOR DEFICITS AND ONSET BY AGE 18. NOW, I UNDERS TAND THE ONSET BY AGE 18 COMPONENT TO B E THAT YOU HAVE TO SHOW THAT BOTH OF THOSE PRIOR COMPONENTS ARE SATISFIED A T THAT PO INT , SO THAT CONSEQUENTLY, IF THERE ARE NO INDICATIONS AT ALL PRIOR TO AGE 18 , AND SOM ETIME LATER THE DEFENDANT BECO ME S , HAS MENTAL D O ESN'T OF O NEKIND OR AN OTHER, YOU SI MPLY RULE OUT RETARDATION , BECAUSE IT OC CURS , STARTS ATTHAT POINT. HOWEVER, THAT DOES NOT INDICATE THAT WE CAN SIM PLY SAY THAT SOMEONE WHO HAS, WHO IS NOT RETARDED AND CERTAINLY SCORES IN THE '80 -- IN THE 80s AND NINETIES AT THE TIME THAT HE IS IN HIS THIRT IES AND FORT IES, WE DON'T SIMPLY I G NORE ALL OF THAT CURRENT BEHA VIOR.
CHIEF JUSTICE: NOW , IN THIRTIES AND FORTIES. HE COMMITTED THE C RIME A T AGE 2 5. I DON'T KNOW, I GUESS AS WE GET THESE CASE S WE WILL LEARN MORE AND MORE ABOUT MENTAL RETARDATION, JUST LIKE MENTAL ILLNESS , WHERE WE ARE NOT AS EDU CATED AS WE MIGHT OUGHT TO BE , BUT W E WOULD LOOK AT WHAT IS THE SITUATION AT AGE 25 , RIGHT , THE COMMISSION OF THE CR IME?
CERTAINLY THAT WOULD BE --
CHIEF JUSTICE: YOU SAID DISCUSSING MORAL CULPABILITY AT THE TIME OF THE CRIME .
CERTAINLY .
CHIEF JUSTICE: SO YOU ANDMR. CANON AG REE ON THAT , THAT IS THAT YOU ARE LOOKING AT WHETHER THE PERSON WHO COMMITTED THIS CRIME WAS NOT MORALLY CULPABLE BECAUSE HE OR SHE WAS MENTALLY RETARDED .
RIGHT. I THINK THAT THE ATKINS CONCERN IS WHAT IS THE DEFENDANT'S SITUATION AT THETIME OF TRIAL AND AT THE TIME OF THE COMMISSION O F THE OFFENSE.
CHIEF JUSTICE: I T HINKSOMEBODY WHO IS UNQUESTIONABLY MENTALLY RETARDED, AND E VERYONE KNEW AS A CHILD THEY WERE MENTALLY RETARDED , YOU KN OW , WERE B ARELY FUNC TIONING , COULDN'T FUNCTION ON T HEIROWN , IT WOULD BE A L I TTLE SURPRISING TO SEE THAT, AFTER AGE 18 , TH EY HAVE BLOSSOMED AND NOW WERE A FULLY FUNCTIONING AD ULT, SO IT IS SORT OF THAT YOU GROW OUT OF MENTAL RETARDATION.
NO.
CHIEF JUSTICE: BUT H ERE COULD YOU GIVE US T HEPICTURE OF WHAT, FROM THE STATE'S POINT OF VIEW , THE EVIDENCE S H OWED ABOUT THERE WERE SOME TEST THAT IS INDICATED MENTAL RETARDATION.WHAT WAS THE SI TUATION WITH THIS DEFENDANT PRE-18?
WELL , LET'S START , I GUESS, WITH DR . PIN KARD , AND DR. PI NKARD , WHO IS A DEFENSE EX PERT , I G UESS, WHO STILL IS OF THE VIEW , THE ONLY EXPERT WHO IS ST ILL OF THE VIEW THAT HE HAS THE DISCRETION TO DETERMINE THE DEFENDANT TO BE MENTALLY RETARDED. HE SCORED THE DEFENDANT ON A 88 ON THE WI SK TEST , AND AT THAT POINT WHEN HE G AVE H ISTEST, HE DID NOT W RITE A NYCONCLUSION THAT THE DEFENDANT IS MENTALLY RETARDED. HE TALKED ABOUT THAT THE DEFENDANT HAS A N INADEQUATE PERSONALITY DISORDER. AS NOTED IN HIS ORDER , DR . PINKARD NOTED THAT T HEDEFENDANT WAS EMOTIONALLY MATURE FOR HIS AGE , AND --
CHIEF JUSTICE: WHAT A GEWAS THAT WHEN HE MADE THOSE FINDINGS?
THAT WAS IN '7 6. I THINK HE WAS 16 YEARS OLD AT THAT TIME .
YOU HEARD THE O PENING STATEMENT OF YOUR OP PONENT , WHO SAID THAT MA NY YEAR S AGO , THAT THE STATE OR THE GOVERNMENT HAD DECL ARED HIS CLIENT MENTALLY RETARDED . HE IS NOT JUST P I CKING T HAT OUTFIT THE BLUE , IS HE? HE IS BASING THAT ON SOMETHING. COULD YOU EXP LORE FOR U S , WHAT IS HE TALKING ABOUT. WHAT EVID ENCE IS HE TALKING ABOUT?
I THINK WHAT HE IS REFERRING TO IS THE FACTTHAT THE DEFENDANT WAS , AT A CERTAIN PERIOD OF TIME WAS IN THE EDUCAT IONALLY MENTALLY RETARDED CLASSES IN SCHOOL. NOW, THE EVIDENCE AT THE HEARING INDICATED THAT HE WAS , FOR A PERIOD OF TIME IN THOSE CLASSES, AND THEN THE SCHOOLS MADE A DETERMI NATION OR A RECOMM ENDATION THAT HE BE RETURNED TO HIS REGULARCLASSES, BECAUSE HE COULD NOT FIT INTO THAT .
EXPLAIN TO US WHAT, AS OPPOSED TO JUST STATEMENT THAT HE WAS DEC LARED EDUCATIONAL MENTALLY RETARDED OR WHATEVER, WHAT TESTS WERE DONE OR WHAT , WHAT I S BEHIND THAT DETERMINATION , IF ANYTHING , IN OTHER WORDS, WERE THERE RECORDS INTRODUCED IN THIS CASE THAT SHOW IQ TESTS GIVEN AT THE TIME ? OR TESTS OR WHAT BACK S THAT UP?
WELL , THERE ARE EXHIBITS IN THE , INTRODUCED AT THE HEARING , IN W H ICH TALKS ABOUT THERE WERE LETTERS OF , YOU KNOW , IN WHICH THE PARENT OR THE STEPPARENT HAD GIVEN PERMISSION THAT HE BE PUT INTO AN EDCABLE MENTALLY RETARDED CLASS. THERE WERE STATUS REPO RTS BY VARIOUS PEOPLE AS TO HIS PROGRESS OR WHAT HIS STATUS WAS IN THOSE CIRCUMSTANCES , AND THE EXHI BITS INDICATED THAT SUBSEQUENT LY A RECOMMENDATION WAS MADE BY ONE OF THE PEOPLE INVOLVED IN IT THAT HE BE RET URNED T O HIS NORMAL CLASSES . I WOULD LIKE TO POINT OUT THAT, IN ADDI TION, I THINK ONE OF THE IMPORTANT WITNESSES I N THIS CASE WAS DR. CROP P. DR. CROPP WAS THE DEFENSE MENTAL HEALTH EXPE RT AT THE RESENTENCING PROCEEDING , AND HE WAS , HE TESTIFIED AT THE EVIDENTIARY HEARING IN THIS CASE, AND HE TESTED THE DEFENDANT AT ABOUT 72 , I THINK IS WHAT I RECALL ED. HE SAID THAT HE WAS NOT RETARDED IN HIS OP INION . WHAT WAS IM PORTANT ABOUT DR. CROPP IN THIS CONTEXT A T THIS POINT , IS DR. CROPP HADALL OF THE SCHOOL RECORDS AVAILABLE AT THAT TIME , AND HE WAS V ERY , SE EMED T O M E VERY FORCEFUL IN HIS CONCLUSION THAT THE ADAPTIVE FUNCTIONING, THE MATERIAL THAT WAS AVAILABLE T HAT THERE WAS A TEST OF 1 20 DIFFERENT CATEGORIES AS TO HOW --
WH Y ARE YOU STILL TALKING ABOUT THE SCH OOL RECORD S, AND IN ORDER TO PIN THIS DOWN, YOUR OPPONE NT IS MAKING A CLAIM IN ES SENCE THAT HIS CL IENT WAS ADJUDICATED MENTALLY RETARDED BEFORE , AND SO --
NO.
-- RECORDS OR WERE THERE TESTS GIVEN OR OTHER THIN GS THAT WOULD SU PPORT THAT?
I HAVE NO EVIDENCE OR INDICATION IN THE REC ORD THAT THERE WAS ANY ADJUDICATION THAT HE WAS MENTALLY RETARDED . I AM NOT CE RTAIN HOW THINGS WORKED IN THE 196 0s ALL OF THAT, BUT I T COULD HAVE BEEN VOLUNTARY ACTI ONS AND PROGRAMS THAT WERE AVAIL AB LEIN THE SCHOOL SYSTEM .
NO IQ TEST .
HE HAD, WELL , THE MAN ATEE SCHOOL SY STEM IN 19 74 , HAD AN IQ TEST OF 70 , BUT W E DON'T KNOW WHAT THE CIRCUMSTANCE, I MEAN , WE DON'T KNOW WHO ADMINISTERED IT OR, WE DON 'T HAVE THE RAW DATA.
BUT THERE WAS AN IQ TEST , AND APPARENTLY HE MET THE ONE PRO NG AT THAT TIME, I N THAT IQ TEST , OF A SCORE OF 70?
HE HAD A 7 0 SCORE AT THAT TIME , AND PRESUMABLY THE ADMINISTRATORS DECIDED TO SEE WHETHER OR NOT HE WOULD DO BE TTER IN THE ED YOU CABLE MENTALLY RE-- EDUCABLE MENTALLY RETARDED CLASSES.
WHY DON'T WE TAKE A R ULE BY THE LEGISLATURE , AND AT SOME POINT HE HAS MET THE 70 SCORE ON THE IQ TEST , BY THEFACT THAT THE SCHOOL PEOPLE HAVE DETERM INED THAT HE IS NOT FUNCT IONING , THAT HE , THAT THE MENTAL RETARDATION ISN'T AFFE CTING HIS FUN CTIONING AS A ST UDENT OF BELOW NORMAL. WHY, THEN , DON'T WE HAVE A SITUATION WHERE , IN ESSENCE , HE HAS BEEN DETERMINED TO BE MENTALLY RETARDED AT THAT TIME, AND THAT HASN'T CHANGED?
WELL , I DON'T KNOW T HAT HE HAS BEEN DETERMINED TO BE MENTALLY RETARDED AT THAT TIME. I THINK THAT , WHEN YOU DO AN ANALYSIS AND A RE VIEW OF ALL OF THE STUDIES AND WORK THAT HAS BEEN DONE BY DR. CROPP AND EV ERYONE E LSE, THAT AS TO THE SCHOOL RECORDS AND SCORES THAT HE WAS DO ING ON THE ADAPTIVE FUNCTI ONING TEST , 120 QUESTIONS AND ALL OF THAT , PLUS A REVIEW AND DETERMINATION OF HOW HE PERFORMED AND HOW HE DID , HOW HE GOT ALON G IN THE SCHOOL SYSTEM AND WITH OTHERS , IT IS Q U IT E CLE AR THAT THE DEFENDANT FA ILED T O MEET THE ADAPTIVE FUNCTIONING TEST, EVEN WAY BACK T HEN.NOW , DR . PI NKARD , WH OM THEY PLACED A GREAT DEAL OF RELIANCE ON , INDICA TE D THAT IF THE TEST THAT HE G AVE WAS ACCURATE AND THE 88 SKORX HE WOULD NOT QUALIFY AS MENTALLY RETARDED , AND HE INDICATES THAT HIS CURR ENT, THAT THE CURRENT SCORES , CERTAINLY, WOULD NOT PLACE HIM IN THE MENTALLY RETARDED CATEGORY. MATTER OF FACT DR . PIN KARD WAS N EVER EVEN I N FORMED AS TO SOME OF THE HIGH ER, THE LATER SCORES THAT WERE GIVEN , AND BY DR . MOSSMAN AND B Y SOME OF THE OTHE RS. WHEN WE LOO K AT SOME OF THE OTHER DEFENSE EXPERTS , DR . MOSSMAN WAS ONE OF THE EXPERTS CALLED BY T HEDEFENDANT, AND HE SAYS I EVALUATED HIM AND GOT SCORE OF 78 , AND HIS SCORE WAS SO HIGH, I DIDN'T EVEN BOTHER DOING ADAPTIVE FUNCTIONING TESTS BECAUSE MENTAL RETARDATION IS NOT IMPLICATED. WHEN YOU LOOK AT SOME OF T HEOTHERS, DR . GAMASH , THE TRIAL J U DGE PL ACED A GREAT DEAL OF REGARD TO DR . GAMASH'S REPORT BECAUSEOBVIOUSLY IT FI T IN WITH EVERYTHING. DR. GAMASH OBTAINED A SCORE OF 91 O VERALL , AND IN S OME OF THE SCORES , SOME OF THE SUBTESTS THAT WERE GIVEN , THE DEFENDANT WAS SUPERIOR , IN ART APPRECIATION , DR AWING AND ARTISTIC AND ENDEAVORS AND THINGS OF THAT NAT URE . DR. GAMASH CONCLUDED THAT , IF HIS SCORES IN THAT AREA WERE ACROSS THE BOARD IN OTHER AREAS, HE WOULD HAVE AN IQ OF 120! NOW, BOTH DR . GAMASH AND DR . LLORENTE AND DR. CROPP AND DR . ME LON, THEY , ALL , DESCRIBE THESE THINGS AS WHEN YOU SEE MENTAL RETARDATION, YOU GENERALLY SEE FLAT LINE APPROACHES ACROSS THE BOARD ON THE SUBTESTS, AND THE EXPERT'S OPINION IS , THAT IS BASICALLY INCONSISTENT , TO HAVE SOME SCORES FLUCTUATING AT THE AGREE TO WHI CH WE HAVE HE RE.
DID THE TRIAL COURT Z ERO IN ON ANY PARTICULAR TIME? YOU KNOW, WE HAVE TALKED ABOUT THE EARLIER TIME W HEN HE WAS IN SCHOOL , AND WE HAVE TALKED ABOUT THE TIME OF THE OFFENSE . NOW WE HAVE TALKED A BOUTLATER, IN TE RMS OF WHETHER OR NOT HE CAN BE EDUCATED , EXECUTED IF HE IS DETERMINED TO BE MENTALLY RETARDED . DID THE TRIAL COURT FOCU S ON ANY ONE OF THOSE TIMES , OR WAS IT AT THE TIME OF THE EVIDENTIARY HEAR ING? IN OTHER WORDS WHAT WAS THE TRIAL COURT'S DETERMINATION? WAS IT THAT HE DET ERMINED,WELL, AT THE TIME WE WERE HAVING THIS HEARING , O KAY , I AM DETERMINING THAT HE IS NOT NOW MENTALLY RETARDED ? WHAT WAS THE CONCLUSION OF THE TRIAL COURT , W ITH REFERENCE TO THAT CHRONOLOGY AT THAT TIME?
WELL, I THINK HIS CONCLUSION WAS THAT HE IS CERTAINLY NOT MENTALLY RETARDED NOW, AND IN ADDITION, IT I S PRE TTY CLEAR FROM THE TENOR OF HIS ORDER THAT HE IS SAYING THAT THERE IS B ASIC AGRE EMENT BET WEEN DR. CROPP , DR . MELON , AND DR . GAMASH , AS WELL AS DR. LOREENT I, BY THE WAY , THAT -- DR . LLOR ENTE , BY THE WAY , I DON'T KNOW IF DR . L L ORENTE SAYS HE WASN'T RETARDED WAY BACK WHEN , BUT THEY ALL AGREE , THE OTHER EXPERTS AGREE THAT HE WAS NOT RETARDED WAY BACK WHEN --
CHIEF JUSTICE: I WANT TO REFRESH MY RECOLLECTION. I AM PRET TY SURE ABOUT THIS , BECAUSE WE ARE GOING TO START TO SEE SOME O F THESE CASES, AND WE HAVE CERTAIN CASES AND WE KNOW THEIR NAMES, WHERE THERE WAS NO QUESTION IN THE ORIG INAL SENTENCING HEARING AND IN THE CASE ON APPEAL , THAT THE DEFENDANT HAD BEEN FOUND TO BE MENTALLY RETARDED , A NDMAYBE IT WAS USED AS A MITIGATOR. I AM LOOKING BACK AT THE SENTENCING ORDER IN THIS CASE, AND IT DOESN'T APPEAR THAT, EVEN AT THE TIME BEFORE ATKINS , THAT EVEN AS A MITIGA TO R , THAT MENTAL RETARDATION WAS FOU ND. THE MITI GATING CIRCUMSTA NCES THAT WAS FOUND WAS THIS DEFENDANT HAD A BE LOW AVERAGE IQ AND HAS HAD , BOTH, FAMILY PROBLE MS AND DEVELOPMENTAL PROBLEMS, AND IT DOESN'T APPEAR THAT , OTHER THAN YOU KNOW , WE HAVE MADE SH ORT SHRIFT OF THAT ON APPEAL, THAT THAT WASN'T LIKE A SEPARATE ARG UMENT.IS THAT THE STATUS ON DI RECT APPEAL?
ON THE RESENTENCING APPEAL, ON MY RECOLLECTION OF THE SENTENCING ORDER WAS THE JUDGE DID FIND T HAT HE WAS BELOW AV ERAGE INTELLIGENCE.
CHIEF JUSTICE: THAT IS WHAT I WAS READING HERE .
AND I AM FAIRLY CONFIDENT THAT THE DEFENSE ARGU ED TO THE JURY AND IN C L OSING ARGUMENT THAT HE WAS RETARDED. I MEAN , THEY WERE RELY ING, I THINK, TO SOME E X TENT ON DR. CROPP'S TESTIMONY WHO TALKED ABOUT HIM BEING IN THE BORDER LINE AREA ON THAT. THE DEFENSE , I AM SURE, ARGUED THAT, BU T, AGAIN , AS THE TRIAL JUDGE POINTED OUT , I THINK IN THE CONCLUSION , IN THE CONCLU DING PARAGRAPH OF HIS SEN TENCING ORDER , THAT LESS THE THERE BE ANY DOUBT -- THAT LEST THERE BE ANY DO UBT ABOUT THE CIRCUMSTANCES OF THE CRIME DEMONSTRATE THAT IT IS NOT SOMETHING LIKE A REACTIVE SITUATION BY THE DEFENDANT. IT WAS A FAIRLY -WELL-PLANED THING. HE WENT IN TO THE S T ORE. HE WA ITED UNTIL THE OTHER CUSTOMERS HAD LE FT. FORTUNATELY THERE WAS A PRIOR CUST OMER , I GUESS , O R SOMEONE STANDING NEA RBY WHO SAW THAT HE WAS THE L AST PERSON IN THE STORE TO , INFORMED THE POLICE ABOUT THAT. HE WAITED UNTI L THE STORE WAS EMPTY, COMMI TTED T HECRIME. HE AD MITTED TO - - HE ATTEMPTED TO O BTAIN AN AL IBI FROM A FRIEND AFTERWARD S. OBVIOUSLY IT IS V ERY PURPOSEFUL ACTIVITY GOING ON HERE, AND I THIN K THE SENTENCING JUDGE WHO ENTERED THE ORDER SAID IT IS REALLY NOT THE SITUATION THAT THIS DEFENDANT'S MORAL CULPABILITY SHOULD BE REDUCED OR ELI MINATED IN THIS CASE. IT WAS A VERY BRUTAL CRIME , AND YOU KNOW , I AM NOT , I DON'T WANT TO LEAVE THE IMPRESSION THAT THE JUDGESLOFD IT OFF . -- SLOUGHED IT OFF.
CHIEF JUSTICE: M Y STATEMENT AS WE CONCLUDEHERE IS THAT WE ARE GOIN G TO , I AM CONCER NED THAT WE ARE GOING TO START IN EVERY CASE RELITIGATING THE ISSUE OF MENTAL RETARDATION. I HO PE THAT THE STATE , IN CASES WHERE THERE HAS BEEN CONSISTENT FINDINGS OF MENTAL RETARDATION , BUT IT WAS PREATK INS , WE W ILL L OOK AT THOSE CASES SERI OUSLY , TO SAY THAT THOSE CASES SHOULD BE REDUCED TO LIFE , BUT IN CASES WHERE THERE HAVE BEEN NO FINDINGS THAT , FOR US TO NOW , 20 YEARS LATER , BE SECOND-GUESSING WHAT WASALREADY PRESENTED IN THE TRIAL JUDGE , TO ME IS A DIFFERENT SI TUATION. THAT IS ALSO FOR MR . CANNON TO RESPOND TO .
WELL , I DON'T KNOW WHETHER THE COURT IS INQUIRING WHETHER THE STATE IS GOING TO , IN THE FU TURE OR OTHER CASES - -
CHIEF JUSTICE: NO. I CERTAINLY WOULDN'T ASK YOU THAT. I AM JUST NOT ING THAT , FOR THIS CASE IT DOE SN'T APP EAR THAT THIS IS A CASE WHERE HE DOES HAVE BELOW AVERAGE IQ, BUT THERE WAS NE VER A FINDING THAT HE WAS MENTALLY RETARDED BY THE T RIAL COURT .
IT WOULD SEEM TO ME T HAT THERE WOULD W E LL BE A NUMBER OF CASES THAT ARE PREVIO USLY CITED IN WHICH A NUMBER OF PEOPLE PREVIO USLY TESTIFIED , MENTAL HEALTH EXPERTS , ONE WAY OR THE OTHER WHO MAY HAVE DESCRIBED THE DEFENDANTAS BEING ON THE BORDER LINE AREA, AND THAT WAS LOO SELY INTERPRETED, EITHER BY THE TRIAL JUDGE OR BY OTHERS , TO MEAN AN AC TUAL FINDING O F MENTAL RETARDATION , W HEN Y OUKNOW, THERE SEEMS TO BE, STILL , SOME OF THOSE WHO WOULD ARGUE THAT BORDER LINE MENTAL RETARDATION IS T HESAME AS MENTAL RETARDATION, WHEN MOST OF THE EXPERTS IN THIS CASE SAID THAT IS NOT TRUE, NOT THE CASE , SO I DON'T KNOW IF I AM , I CERTAINLY DON'T WANT T O ANTICIPATE OR ARGUE AHEAD OF SOME FUTURE CASE Y AM N OT APART OF OR DON'T KNOW ANYTHING ABOUT. IN ANY EVENT, WE SU BMIT THAT THE FINDINGS OF FACT M ADE B Y THE TRIAL COURT HERE ARE OVERWHELMING, BAKERY. I DON'T SEE THAT -- BASICALLY.I DON'T SEE THAT THERE CAN BE ANY JUDGMENT MADE THAT THE DEFENDANT IS MENTALLY RETARDED AT THE CUR RENT TIME . AND I THINK THE OB VIOUS FACTOR OF DR . MOS SMAN 'S ACTIVITY HERE THAT HE WOULDN'T EVEN DO ADAPTIVE FUNCTIONING TESTING BECAUSE THE SCORING WAS TOO HIGH , PRETTY MUCH DEMONSTRATES THAT FACTOR, SO UNLESS THE COURT HAS ANY O THERQUESTIONS, I WOULD ASK THE COURT TO AFFIRM THE LO WER COURT'S ORDER. THANK YOU.
CHIEF JUSTICE: REBUTTAL.
YES. I JUST WANT TO BE GIN REAL QUICKLY, BY STATING THAT I N 19 AM 4 , TWO I Q - - IN 1974 , TWO IQ TESTS WERE ADMINISTERED BY MS. DU KES. WE DO HAVE THAT IN T HERECORD AND THAT IS VERY CLEAR, THE FIRS T ONE 69 AND THE SECOND ONE A 7 0.AT THE TIME OF THE OFFENSE IN 19 76 , MR . TROT TER WAS ADMINISTERED A TEST AND SCORED A 72 , WH ICH IS WELL WITHIN THE STANDARD OF MEASUREMENT, PLUS OR MI NUS FIVE POINTS, SO THAT WAS ESTABLISHED, AND IT WAS REFERENCED BY THE STATE THATTHERE WAS POSS IBLY SOME I Q TEST OR WHAT EVER . THAT IS VERY CL EAR THAT THE IQ TEST IND ICATED HE WAS MENTALLY RETARDED WITH REGARDS TO THAT FIRST PRO NG, AND THEN WITH , WHEN WE MOVE ON TO THE ADAPTIVE SKI LLS, EVERYTHING WE HAVE BEEN TALKING ABOUT , ABOUT DELAYS AND SOCIALIZATION, THAT IS THE SECOND PART. THAT IS , ONE , USED TO BE TEN CONSTRUCTS AND NOW IT I S D OWN TO THREE WITH REGAR DS TO ADAPTIVE SK ILLS , AND DR . PINKARD DID STATE, HE GAVE TWO DIAG NOSIS OF A SPECIFIC LEARNING DISTURBANCE AND INADEQUATE PERSONALITY, AND THEN HE DID TESTIF Y AT THE EVIDENTIARY HEARING THAT THAT WAS DEFICIT S , THOS E WERE DEFICITS I N ADAPTIVE FUNCTIONING BACK PRIOR T O THE AGE OF 1 8.
CHIEF JUSTICE: AND THAT , THOSE, THAT TESTI MONY THAT THE TRIAL JUDGE FOUND , THAT IS THE CHANG E NOT T O BE CREDIBLE, AND HE FOUND THE OTHER EXPERTS THAT WERE OVERWHELMINGLY IN CONSEN SUS , TO BE MORE CRED IBLE.
WELL, ALSO , DR . LL ORENTE , NOW , THE STATE KEE PS SA YING THAT DR. LLORENTE SAID T HAT MR. TROTTER IS NOT RETARDED . THAT WAS DR . LLOR ENTE 'S DETERMINATION AS OF RIGHTNOW, BASED ON HIS IQ SCORES , AND, AGAIN , THE SE ARE NOT I Q SCORES THAT ARE FLUCTUATING RAPIDLY. THIS MAN HAS BEEN ON DEATH ROW FOR QUITE SOME TIME , AND THEY HAVE GONE U P A LITTLE BIT. THE 91 SHOULD BE THROWN O UT. THAT 91 IS AN ABER RATION . THAT WAS TA KEN , PRACTICE BACK WHEN EXPERTS WILL AGREE THAT, WHEN YOU HAVE A 91 AND 69 , THERE IS SOMETHING WRONG WITH THAT 91, WHEN ALL OF THE OTHER SCORES ARE , WEHAVE 6 9 AND THEN IN THE 70 s. THAT 91 , AGAIN , WAS INFLATED BECAUSE OF THE PRA CTICE EFFECT, BUT DR. LLORENTE DID TESTIFY , H A S NOT TESTIFIED, PUT IN HIS RE PORT WHIC H THE JUDGE HAD ACCEPTED THAT , THAT HE DID HAVE THESE ADAPTIVE SKILLS, ALSO , HE DID HAVE THESE DEFICITS , AND THAT MR. TROTTER WAS MENTALLY RETARDED PRI OR TO THE AGE OF 18 , AND THEN T HAT WOULD BE ENOUGH TO STATIES PHI ATKINS AND THE STAT UTE . -- TO SATI SFY ATKI NS AND T HESTATUTE. THANK YOU VERY MU CH.
CHIEF JUSTICE: THANK YOU TO BOTH SI DES. WE WILL TAKE THE CASE UNDER ADVISEMENT AND