CHIEF JUSTICE: GOOD MORNING, EVERYONE. I APPRECIATE ALL OF YOU BEING READY TO GO ON THE FIRST CASE. BEFORE WE CALL THAT CASE, WE WANT TO WELCOME THE LAW STUDENTS FROM THE FLORIDA COASTAL SCHOOL OF LAW, AND PROFESSOR PAT RUSSO, WHO USED TO BE A LAWYER ON THE STAFF OF JUSTICE SHAW HERE, AT THE COURT, SO WE WELCOME YOU ALL THIS MORNING. WITH THAT, WE WILL CALL, WE HAVE THOMAS AND MILLER VERSUS STATE OF FLORIDA. I UNDERSTAND YOU ALL HAVE AGREED ON HOW YOU ARE GOING TO DIVIDE YOUR TIME. GOOD MORNING.

THANK YOU, YOUR HONOR. MAY IT PLEASE THE COURT. MY NAME IS DAVE DAVIS, REPRESENTING MR. DEMETRIS THOMAS AND I APPRECIATE YOU GIVING US THE OPPORTUNITY TO ARGUE THIS CASE AGAIN, AS TO MR. MILLER AND MR. THOMAS'S CASE. I WANT TO POINT RIGHT UP FRONT, THOUGH, THAT THIS ARGUMENT, AT LEAST TO THE DEFENSE, IS UNNECESSARY, BECAUSE THE TRIAL COURT IN BOTH CASES FOUND THE DEFENDANTS MENTALLY RETARDED AND THERE IS PLENTY OF EVIDENCE TO SUPPORT THAT. SO THIS COURT --

WAS THERE ANY, FINDING MENTALLY RETARDED IS, ON THE BASIS OF EVIDENCE THAT WAS PRESENTED DURING THE PENALTY PHASE, BUT THERE WAS NOT, REALLY ANY DISCUSSION OF THE DEFINITION OF MENTAL RETARDATION.

WELL, I THINK THE PSYCHOLOGIST, AT LEAST IN MY CASE, DR. LARSON, CERTAINLY WENT THROUGH ALL THE CRITERIA. HE FOUND HE HAD AN IQ OF, I THINK, IT WAS 67, AND HE FOUND THAT HE HAD DEFICITS IN ADAPTIVE BEHAVIOR: THE TRIAL COURT, OBVIOUSLY BEFORE H-18, SO OBVIOUSLY HE MET THE DEFINITION. THE TRIAL COURT FOUND HIM MENTALLY RESTARTED, AND THE STATE AT NO POINT, AND THAT IS IMPORTANT, AT NO POINT HAS EVER CONTESTED HE IS MENTALLY RETARDED. THEY DIDN'T DO IT AT TRIAL.

OF COURSE IN FAIRNESS, NOW, IT WAS NOT, IT WAS NOT, IT WAS SOMETHING THAT WAS IN MITIGATION AND NOT IN TERMS OF WHAT, NOW, THE SUPREME COURT HAS COME DOWN --

NO, NO, THEY RAISED THE CONSTITUTIONAL -- THEY SAID --

IS IT YOUR POSITION THAT, UNDER ATKINS, THAT IF A PERSON IS DETERMINED TO MEET THE DEFINITION OF MENTAL RETARDATION AND THE RECORDS SUPPORT THAT, TO GET TO THE BURDEN OF PROOF, AND ALSO THAT IS ANOTHER ISSUE, ISN'T IT, THAT --

RIGHT.

-- THAT THE PERSON IS NOT DEATH ELIGIBLE, ISN'T IT?

THAT IS WHAT ATKINS HOLDS. IF A DEFENDANT CONVICTED OF FIRST-DEGREE MURDER IS MENTALLY RETARDED, IT IS CRUEL AND UNUSUAL TO EXECUTE THEM. THAT IS WHAT ATKINS SAYS. AND WE ARE ARGUING THAT THAT DETERMINATION HAS ALREADY BEEN MADE, SO AS TO MR. MILLER AND MR DEPALMAS, THIS COURT SIMPLY SHOULD REMAND AND SUPPORT THOSE TWO DEFENSES.

THE QUESTION AND GOING BACK TO WHAT JUSTICE WELLS IS SAYING, BECAUSE I UNDERSTAND IT THAT THE ORIGINAL TRIAL, THE STATE DIDN'T CONTEST IT, BUT THE ISSUE AT THAT TIME WASN'T WHETHER OR NOT A MENTALLY RETARDED DEFENDANT WOULD BE ELIGIBLE FOR THE DEATH PENALTY, BECAUSE THE LAW IN THIS STATE, AND IN THE COUNTRY, WAS THAT HENRY -- HENDRY WAS THE LAW SO IF WE OVERLAY, AND LET'S ASSUME THAT THE STATUTE THAT THE LEGISLATURE HAS ADOPTED SETS FORTH THE DEFINITION OF MENTAL RETARDATION THAT THIS COURT WERE TO ADOPT, IS THE RECORD CLEAR, FIRST OF ALL, IS THE RECORD CLEAR THAT YOUR CLIENT MEETS THAT STATUTORY DEFINITION OF MENTAL RETARDATION?

THE ANSWER TO THAT IS YES.

AS FAR AS THE STATUTORY, THE BURDEN OF PROOF, THE STATUTE SAYS CLEAR AND CONVINCING EVIDENCE. HAVE YOU MET, IS THAT THE APPROPRIATE BURDEN THAT WE SHOULD, AND, AGAIN, WE ARE LOOKING NOT ONLY AT YOUR CASE BUT ANY OTHER CASES THAT WILL BE COMING UP UNDER, YOU KNOW --

I UNDERSTAND. YES, HE MEETS THAT BURDEN. BUT LET'S, MAYBE WHAT WE OUGHT TO DO IS JUST TO PROCEED ON TO THE QUESTIONS THAT YOU ORDERED ME TO RESPOND TO IN A SUPPLEMENTAL BRIEF, AND THAT MAY I THINK THAT IS REALLY WHAT YOU WANT TO TALK ABOUT, AND I JUST WANT TO MAKE SURE THAT YOU UNDERSTAND THAT WHERE I AM COMING FROM IS I AM NOT CONCEDING THAT THE ISSUE OF MENTAL RETARDATION IS AN OPEN QUESTION. OKAY.

WELL, WITH THOSE QUESTIONS, LET ME ASK YOU, THE SUPREME COURT, IN DECIDING ATKINS, DECIDED THE ISSUE ON THE CONSTITUTIONAL BASIS, BUT THEN SAID WE ARE GOING TO LEAVE THIS UP TO THE STATES. ALL RIGHT. NOW, WHY SHOULDN'T WE SIMPLY TAKE THE STATUTORY SCHEME THAT WAS BE ENACTED, ALTHOUGH IT WAS ENACT -- THAT WAS ENACTED, ALTHOUGH IT WAS ENACTED BEFORE THE ACTUAL DECISION IN ATKINS, AND SAY, WELL, THIS IS THE WAY THE STATE HAS DECIDED TO APPLY THIS ISSUE, AND JUST INCORPORATE IN TOTO, THE PROCEDURE THERE? WHY SHOULDN'T WE DO THAT?

WELL, YES AND NO. FIRST OF ALL, AS TO THE DEFINITION, THE LEGISLATURE HAS THE PERFECT RIGHT TO DO THAT, TO FIND MENTAL RETARDATION. THEY HAVE DONE. THAT I HAVE NO PROBLEM WITH THAT AND THE STATE HAS NO PROBLEM WITH THAT. THAT IS A GOOD DEFINITION. AS FOR SECTION 924.127, THAT IS NOT THE LEGISLATURE'S DUTY. IT IS YOUR DUTY. ARTICLE V GIVES YOU THE EXCLUSIVE RIGHT AND PRIVILEGE TO DEFINE THE PRACTICE AND PROCEDURES OF THIS COURT, NOT THE LEGISLATURE, AND THAT IS WHAT THEY HAVE DONE WITH THAT SUBSECTION 4.

THERE HAVE BEEN MANY INSTANCES, HOWEVER, WHERE THE LEGISLATURE, WITH REFERENCE TO THE EVIDENCE CODE OR PROCEDURE IN OTHER MATTERS, WHERE THIS COURT, EVEN THOUGH WE MAY HAVE THE ULTIMATE AUTHORITY, WE STILL AS A MATTER OF COMITY, DEFERENCE SAID, WELL, WE AGREE WITH THAT PROCEDURE, SINCE THERE IS A WHOLE SCHEME IN PLACE THERE, WHY SHOULDN'T WE DO SO IN THIS INSTANCE?

WELL, FIRST I AM NOT SURE THE NOTION OF THE COMITY COMING TO PLAY, BUT BE THAT AS IT MAY, FIRST OF ALL THE PROCEDURE IS BIZARRE. IN THE SENSE THAT WE ARE WAYS THING A TREMENDOUS AMOUNT -- WASTING A TREMENDOUS AMOUNT OF JUDICIAL RESOURCES, GOING THROUGH A POSSIBILITY OF HAVING A PROCEEDING THAT MAY NEVER TAKE PLACE. IF THE DEFENDANT IS MENTALLY RETARDED, WELL, IF THAT ISSUE IS NOT RESOLVED UNTIL AFTER THE JURY HAS COME BACK WHAT RECOMMENDATION OF DEATH, THEN LOOK WHAT WE HAVE GOT AN ENTIRE PENALTY PROCEEDING. THAT IS MORE THAN SIMPLY A PROCEEDING. I MEAN, FOR EXAMPLE, I HAD A DEFENDANT SEVERAL YEARS AGO, WHO AFTER HE KILLED HIS WIFE, FLEW OUT TO HAWAII AND STAYED OUT THERE AND LIVED WITH SOME PEOPLE OUT THERE FOR SEVERAL MONTHS, BEFORE HE FINALLY SURRENDERED. THE TRIAL COUNSEL HAD TO MY OUT THERE, I THINK ONCE OR TWICE AND MET THESE PEOPLE AND THEN EVENTUALLY FLEW THOSE BACK FOR THE PENALTY PHASE. IF THE DEFENDANT HAD BEEN RETARDED, WHAT A WASTE OF RESOURCES.

BUT IN YOUR BRIEF, WHAT YOU ARE ARGUING IS THAT, IF THERE IS A DETERMINATION OF MENTAL RETARDATION BEFORE THE PENALTY PHASE, AND THE TRIAL COURT DETERMINES THAT THE PERSON IS NOT MENTALLY RETARDED AT THAT POINT, THAT YOU SHOULD STILL GET TO PRESENT THE MATTER IN THE PENALTY PHASE.

THAT IS ABSOLUTELY CORRECT.

NOW, IF THE LEGISLATIVE PROCEDURE IS ADOPTED, THEN YOU DON'T RUN INTO THAT PROBLEM, DO YOU? YOU HAVE, YOU PUT ON THE MENTAL RETARDATION EVIDENCE, IN ITS NORMAL COURSE, AND THEN THERE IS A DETERMINATION IF THERE IS A FINDING BY THE JURY, RECOMMENDATION BY THE JURY OF LIFE, THEN IN ALL RESPECTS --

RIGHT.

-- THAT LIFE IS GOING TO END, NO MATTER -- THEN THAT IS GOING TO END, NO MATTER. IT IS ONLY WITH THE RECOMMENDATION OF DEATH THAT YOU WOULD GET TO A FURTHER CONSIDERATION OF MENTAL RETARDATION, AND YOU WOULD ALREADY HAVE PRESENTED THE EVIDENCE ANYWAY OR A LOT OF IT.

WELL, WHY GO THROUGH ALL THAT HAS HE WILL, IF WE KNOW RIGHT UP FRONT THE DEFENDANT IS MENTALLY RETARDED? YOU DON'T HAVE TO GO THROUGH THE INVESTIGATION. YOU DON'T HAVE THE ENTIRE PENALTY PHASE. I MEAN, THE WASTE OF MONEY AND JUDICIAL EFFORT GOING THROUGH A PENALTY PHASE, WHEN EVERYBODY KNOWS THE MAN IS MENTALLY RETARDED. NOW, IF WHAT YOU ARE SAYING IS CORRECT AND IF THERE IS REAL CONFLICT ABOUT MENTALLY RETARDED YES, YOU ARE GOING TO HAVE A PENALTY PHASE.

BUT HERE IS WHAT CONCERNS ME. IF THERE IS A DETERMINATION PRIOR TO THE PENALTY PHASE, THAT THE PERSON IS NOT MENTALLY RETARDED, IF IT IS MEN AELT RETARDED AND -- MENTALLY RETARDED AND THE STATE IS GOING TO APPEAL, THERE IS NO DEFICITS, SO IT GOES TO THE DISTRICT COURT SO WHAT WE ARE DOING IS WE ARE GOING TO BUILD UP A BODY OF LAW IN THE DISTRICT COURTS, HAVING TO DO WITH THE MENTAL RETARDATION ISSUES THAT COULD BE AND SIMULTANEOUSLY BEING DEALT WITH IN THIS COURT. NOW, IT JUST SEEMS TO ME THAT WE HAVE GOT TO BE CONCERNED ABOUT THE TOTAL PICTURE, DON'T WE, OF HOW THESE ARE GOING TO BE APPEALED?

WELL, I MEAN YES, THAT COULD HAPPEN, BUT I THINK MORE REALISTICALLY, THE EVIDENCE OF RETARDATION IS GOING TO BE CLEAR.

WELL, IF IT IS CLEAR THEN, THE STATE, YOU KNOW, THE STATE, THEN, MAKES A DECISION AS TO WHETHER THEY ARE GOING TO GO FORTH, KNOWING WHAT THE LAW IS. MY CONCERN, IN FOLLOWING UP WITH JUSTICE WELLS, IS THAT, IF THE APPELLATE COURT REVERSES THE FINDING OF MENTAL RETARDATION, THEN IT GOES BACK FOR A PENALTY PHASE, WHERE YOU GET TO PUT ON ADDITIONAL EVIDENCE, COMES UP HERE, AND YOU ARE GOING TO BE ARGUING THAT THIS COURT SHOULD BE LOOKING AND SEEING WHETHER THE DEFENDANT IS MENTALLY RETARDED, AND THE STATE WILL ARGUE IT IS THE LAW OF THE CASE THAT HAS ALREADY BEEN DECIDED. I MEAN, I THINK THERE IS PROS AND CONS. YOU ARE SAYING THAT PART IS A PROCEDURAL MATTER.

RIGHT.

COULD YOU GO TO THE BURDEN OF PROOF, AS FAR AS WHETHER CLEAR AND CONVINCING OR PREPONDERANCE AND WHETHER PROCEDURAL OR SUBSTANTIVE.

WELL, THE CASEY RELY ON, TO SAY THAT IT SHOULD BE A PREPONDERANCE OF THE EVIDENCE, CONTRARY TO WHAT THE STATUTE SAYS IS CLEAR AND CONVINCING, COMES FROM THE UNITED STATES SUPREME COURT DECISION OF COOPER VERSUS OKLAHOMA, AND THERE THEY LOOK SPECIFICALLY WHAT IS THE BURDEN THE DEFENDANT SHOULD BEAR TO SHOW HIS INCOMPETENCE TO STAND TRIAL, AND THEY START AND THE KEY THAT THEY HAVE COMES AND SAYS THAT THE DEFENDANT MUST COME FROM AN ERRONEOUS DETERMINATION OF COMPETENCE ARE DIRE. SO NOW WE SAY WHAT ARE THE CONSEQUENCES OF THE DEFENDANT, IF HE IS MENTALLY RETARDED UNDER THE PREPONDERANCE BUT NOT CLEAR AND CONVINCING? FOR HIM, IT IS DEATH, AND BECAUSE THE CONSEQUENCES ARE SO MUCH GREATER THAN THE STATE'S, IF HE IS MENTALLY RETARDED BEYOND A REASONABLE DOUBT, THEY HAVE TO PUT HIM IN PRISON AND KEEP HIM ALIVE AND HOUSE HIM, BUT IT IS NOT A DEATH SENTENCE.

YOU ARE SAYING IT IS A DUE PROCESS.

THAT'S CORRECT. THAT IS WHAT COOPER VERSUS ARIZONA SAYS. IT IS A DUE PROCESS CONSIDERATION, WHEN WE LOOK AT CLEAR AND CONVINCING VERSUS SUBSTANTIVE.

IF IT IS MORE THAN A PREPONDERANCE OF THE EVIDENCE, YOUR CLAIMING IT WOULD BE A CONSTITUTIONAL INFIRMITY, BUT THAT HAS NOT BEEN ESTABLISHED YET, AS IT RELATES TO MENTAL RETARDATION.

OTHER THAN THE STATUTE, IT SAID THAT YOU HAVE TO USE A CLEAR AND CONVINCING.

BUT YOU ARE ARGUING FOR A LESSER SENTENCE.

YES. WE ARE ARGUING THAT, WHEN THE LEGISLATURE PUT "CLEAR AND CONVINCING" IN THERE, IT VIOLATED DEMETRIS THOMAS'S RIGHTS.

YOU ARE ARGUING THAT WE SHOULD NOT SEND THIS CASE BACK, BECAUSE HE HAS ALREADY BEEN DETERMINED BY THE TRIAL JUDGE, TO BE MENTALLY RETARDED, SO YOU ARE SAYING IN THIS INSTANCE, THEN, THE STATE HAS WAIVED ANY OPPORTUNITY TO CONTEST MR. THOMAS'S RETARDATION?

YES. THEY NEVER CONTESTED AND IN FACT ON THE ANSWER BRIEF THEY NEVER CONTESTED, ONLY WHEN I FILED A SUPPLEMENTAL INITIAL BRIEF, FOR THE FIRST TIME DID THEY RAISE THIS.

I GUESS IT GIVES ME SOME CONCERN, BECAUSE AS JUSTICE WELLS POINTS OUT INITIALLY, WE WEREN'T IN THE SAME POSTURE, WHEN THIS CASE WAS ORIGINALLY TRIED, AND A DEFENDANT WAS JUST BRINGING THIS IN AS MITIGATING EVIDENCE, AND SO THE STATE DOESN'T ALWAYS NECESSARILY CONTEST THIS MITIGATING EVIDENCE.

WELL, NO. THEY RAISED THE CONSTITUTIONAL ISSUE. THE STATE WAS ON NOTICE. I MEAN, THEY SAID IT IS UNCONSTITUTIONAL TO EXECUTE THE RETARDED. THEY MADE NO CONTEST OF THAT ISSUE. THEY MADE NO CONTEST AS TO WHETHER HE IS MENTALLY RETARDED, SO THEY WERE ON NOTE, I AND SO I AM A LITTLE BIT AMAZED FRANKLY, THAT NOW THEY SAY HE IS NOT MENTALLY RETARDED. THEY HAD ENOUGH OPPORTUNITY, MORE THAN ENOUGH OPPORTUNITY, TO SAY HE IS NOT RETARDED. IT SHOCKS MY CONSCIOUS, AND -- CONSCIENCE, AND I WISH IF YOU ARE GOING TO PRESERVE THIS ISSUE I WISH YOU WOULD WRITE THAT, SO THAT WHEN HE GETS I GET HAMMERED -- SO THAT WHEN I GET HAMMERED BY THESE ISSUES, I CAN RAISE THIS CASE, BECAUSE THEY WERE MORE THAN ENOUGH EVIDENCE FOR CONSTITUTIONAL.

THE COMPETENCY TO PROCEED TO TRIAL BECAUSE OF MENTAL HEALTH ISSUES, JUST BECAUSE SOMEBODY HAS A MENTAL HEALTH PROBLEM DOESN'T NECESSARILY MEAN THEY ARE INCOMPETENT, AND IF I LOOK AT ACTIONS, THE SIMPLE FACT THAT SOMEBODY IS MENTALLY RETARDED IS NOT ENOUGH TO MAKE IT UNCONSTITUTIONAL. RETARDATION HAS TO BE NOT ONLY SUBAVERAGE INTELLECTUAL FUNCTIONING BUT ALSO SIGNIFICANT LIMITATIONS ON ADAPTIVE SKILLS. NOW, WAS THE REAL, THE FULL ISSUE OF MENTAL RETARDATION RAISED AND LITIGATED, OR WAS IT SIMPLY THE IQ FUNCTION?

NO.

BECAUSE I LOOK AT DR. LARSON AND HE TALKS SOMETHING ABOUT THE ADAPTIVE SKILLS BUT IT DOESN'T SEEM FULLY FLESHED OUT.

FIRST OF ALL, MENTAL RETARREDATION IS NOT SIMPLY AN IQ BELOW 70. YOU HAVE TO IS HAVE THOSE THREE CITE YEAR YEAH THERE, SO THERE WAS TALK BY -- CRITERIA THERE, SO THERE WAS TALK BY DR. LARSON OF FAILING TO MEET DEFICITS OR HAVE SUFFICIENT ADAPTIVE DEFICITS. HE HAD THOSE. SO HE FOUND HIM TO BE RETARDED, AND LIKE I SAY, THERE IS EVIDENCE, THAT DR. LARSON PRESENTED TO SUPPORT THAT. MOREOVER, HE REACHED THE CONCLUSION HE WAS MENTALLY RETARDED. IF THE STATE WANTED TO CHALLENGE THAT, UNDER 90.705, IT COULD HAVE CROSS-EXAMINED HIM ON THAT BUT IT NEVER DCHT.

THIS, AGAIN, SO THIS -- IT NEVER DID.

THIS, AGAIN, FOR THIS COURT TO BE ABLE TO FIND IT IN ACCORDANCE WITH THE DEFINITION, WHAT EVIDENCE IN THE RECORD IS THERE AS TO WHAT DEFICITS IN ADAPTIVE FUNCTIONING, AND WHAT DOES THAT MEAN? IN OTHER WORDS, I THINK THAT ALTHOUGH WE THINK THIS DEFINITION THAT HAS BEEN SET OUT BY THE LEGISLATURE IS SOMETHING THAT WILL BE, YOU KNOW, COMMONLY UNDERSTOOD BY EXPERTS, TO ME THAT, YOU KNOW, THE IQ IS ONE THING, ONSET BEFORE 18 IS PRETTY OBJECTIVE, ASSUMING THE PERSON HAS BEEN TESTED, BUT THE DEFICITS IN THE ADAPTIVE FUNCTIONING IS, SEEMS, DID IT LEAVE A LOT OF ROOM FOR INTERPRETATION.

WELL, THE TEST, THE MENTAL RETARDATION TEST HAS BEEN AROUND A LONG TIME. EXPERTS IN THE FIELD ARE COMFORTABLE WITH IT. THEY KNOW HOW TO WORK. AS TO YOUR SPECIFIC, WHAT IS ADAPTIVE DEFICITS AND ADAPTIVE --

WHAT DOES THAT MEAN?

TYPICALLY IT TRANSLATES, CAN THE MAN FUNCTION IN A MODERN SOCIETY? CAN HE MAKE CHANGE? DOES HE KNOW WHERE HIS ADDRESS IS? CAN HE DIAL A TELEPHONE? IN ONE CASE, I WAS LOOKING YESTERDAY, THE GUY HAD TO ASKED FOR HELP TWO OR THREE TIMES TO DIAL A PHONE NUMBER.

AS TO MR. THOMAS?

THERE WAS EVIDENCE IN THERE. ALL I CAN SAY, IT IS IN MY INITIAL BRIEF. I DIDN'T EVEN LOOK THERE. I AM SORRY. I WASN'T --.

YOU ARE SAYING THAT IT IS PRETTY BIG, I MEAN, SOMEONE MENTALLY RETARDED CAN DRIVE A VEHICLE. ARE THEY ALLOWED TO GET A DRIVERS LICENSE?

I DON'T KNOW. THAT, OBVIOUSLY YOU KNOW, YOU HAVE COME THE FULL GAMET. I HAVE HAD DEFENDANTS WHO HAVE HAD GIRL FRIENDS --

ISN'T THAT THE POINT, THOUGH, GOING BACK TO WHAT IS GOING TO BE THE STANDARD FOR WHAT IS SOMEONE WHO IS MENTALLY RETARDED SO THAT THEY CAN'T BE EXECUTED, IF YOU AGREE THAT THIS IT IS NOT SOLELY IQ. IF THEY ARE 70 AND HAS AN IQ IN THE 40s AND WHAT THEY ARE ABLE TO DO ON A DAY-TO-DAY BASIS AND SOMEBODY THAT IS CLOSE TO THE 70 NUMBER, AS TO WHETHER THEY CAN HOLD A JOB, WHETHER THEY CAN LIVE ON THEIR OWN, WHETHER THEY CAN DRESS BY THEMSELVES, WHETHER THEY CAN MAKE PHONE CALLS, WHETHER, OBVIOUSLY, THEY ALL, INCLUDING MR. ATKINS, CAN COMMIT MURDER, SO THAT IS NOT THE ISSUE SO WHAT IS THE, WHAT IS THAT? I MEAN, I THINK WE ARE GOING TO HAVE TO GET OUR ARMS AROUND THAT AS WE --

ARE YOU SAYING THAT A PERSON WHO IS MAYBE 68 OR 69 IS NOT REALLY RETARDED?

THERE IS THREE PRONGS TO IT. THERE IS THE IQ, AND YOU ARE SAYING THE ADAPTIVE BEHAVIOR WOULD BE THEY CAN'T MAKE A TELEPHONE CALL, BUT I WANT TO KNOW IF YOU SAID WE HAVE ENOUGH IN THIS RECORD TO AFFIRM THAT THERE IS NO CONTEST ABOUT ADAPTIVE FUNCTIONING, AND I, YOU KNOW, WE HAVE LOOKED THROUGH THE RECORD. I AM STILL HAVING A LITTLE TROUBLE ABOUT WHERE THAT CLEARLY APPEARS IN THE RECORD, AS TO WHAT MR. THOMAS WAS --

DURING THE STATE'S PRESENTATION, LET ME LOOK IN THERE. I WILL FIND SOMETHING FOR YOU. OTHER THAN THAT, I THINK I HAVE ESSENTIALLY COVERED WHAT I WANTED TO COVER. I WOULD LIKE TO GIVE MISCARRY I A FEW MINUTES TO TALK ABOUT WHAT SHE WANTED TO TALK ABOUT, AND I APPRECIATE YOU HEARING ME.

WOULD ONE OF YOU ADDRESS THE ISSUE OF RETROACTIVITY.

IT IS CLEARLY RETROACTIVE. THE 1989-90 CASE CLEARLY SAYS IT IS, IF I CAN FIND THAT REAL QUICK, CLEARLY SAYS THAT THIS IS RETROACTIVE. I DON'T THINK I BROUGHT THE CASE WITH ME. I DIDN'T BRING THAT.

WE ARE -- A.

IT IS IN THE DISCUSSION OF THE TEAGUE PROBLEM.

CHIEF JUSTICE: MISCARRY I.

A FEW QUICK POINTS, YOUR HONOR. ONE THING I WANTED TO BRING TO THE COURT'S ATTENTION IS THE SUPPLEMENTAL AUTHORITY THAT I FOUND THAT THIS MORNING. IT IS A NEW ARTICLE BY JAMES ELLIS, WHO IS THE, I GUESS THE NATIONAL EXPERT FOR MANY YEARS ON MENTAL RETARDATION.

HAVE YOU SHARED THAT?

I HAVE HAIRED SIRD -- I HAVE SHARED IT WITH THE STATE, YES. THEY HAVE A COPY OF THAT.

WOULD YOU PROVIDE THAT TO THE COURT IN WRITTEN FORM?

YES. IT IS POST-ATKINS. BASICALLY IT LISTS OUT ALL OF THE ISSUES THE COURT IS CONCERNED WITH, AND ALSO HE SUGGESTS A MODEL RULES OR PROCEDURES FOR DEALING WITH THESE ISSUES, AND I JUST WANT TO POINT OUT A COUPLE OF THINGS IN HERE TODAY. ONE THING ABOUT THE ADAPTIVE, SEVERAL OF YOU HAVE ASKED THE ADAPTIVE DEFICIT. HE MAKES THE POINT THAT THIS PART OF IT IS TO DEMONSTRATE THAT THE PERSON IS NOT MERELY AN IMPORTANT TESTTARY, TO SHOW THAT THEY ARE TRULY DISABLED. APPARENTLY THERE IS VERY LITTLE CONFLICT ABOUT THIS PARTICULAR ASPECT OF THE DEFINITION AMONG CLINICIANS. THERE IS NOT A LOT OF DEBATE. IT IS PRETTY CLEAR TO PEOPLE IN THIS FIELD, WHEN THE PERSON IS TRULY DISABLED OR WHEN, MAYBE, THEY JUST WEREN'T A GOOD TESTTARY. MR. ELLIS ALSO POINTS OUT, IN THE STATES WHERE THERE HAS BEEN LEGISLATION FOR MANY YEARS, MAKING MENTALLY RETARDED PERSONS INELIGIBLE FOR THE DEATH PENALTY THAT WITHIN A YEAR OR TWO, AFTER THE PROSECUTORS AND DEFENSE ATTORNEY AND OTHER PEOPLE IN JUDICIAL SYSTEM BECOME FAMILIAR WITH MENTAL RETARDATION, MOST OF THE CONTESTED CASES FALL OUT. THEY ARE NOT VERY MANY OF THEM, AND MANY OF THESE CASES ARE HANDLED THROUGH PLEAS, PRIOR TO TRIAL.

COULD YOU GIVE A PARALLEL ANALYSIS OF YOUR CLIENT'S SITUATION, AS MR. DAVIS DID, WITH REFERENCE TO HIS CLIENT. THAT IS, HE HAS ASSERTED THAT HIS CLIENT RAISED THIS AS A CONSTITUTIONAL CLAIM, AND THEN SUBMITTED PROOF THAT FILLS ALL THREE ELEMENTS OF THE MENTAL RETARDATION, AND THEREFORE THAT HE IS ENTITLED TO THE BENEFIT OF THE TRIAL COURT'S FINDING AND THE BENEFIT OF HIS CONSTITUTIONAL CLAIM. WOULD YOU GIVE US A PARALLEL GLIMPSE OF YOUR CLIENT'S SITUATION.

YES, SIR. THAT WOULD BE MY POSITION, WITH THE EXCEPTION OF IN MY CASE, THERE WAS NOT A CONSTITUTIONAL ARGUMENT MADE AT TRIAL. CONSTITUTIONAL ARGUMENT WAS NOT MADE UNTIL APPEAL. AT TRIAL, MENTAL RETARDATION WAS PRESENTED AS A MITIGATOR. THE DEFENSE PRESENTED AN EXPERT WHO TESTIFIED THAT WILLIE WAS MENTALLY RETARDED. IT IS SEND NATIONALLY, AND FOR MANY, MANY YEARS, THERE IS NO DEFINITION ANYWHERE ACROSS THE COUNTRY.

TO GO THROUGH ALL OF THE THREE CRITERIA AND POINT OUT HOW MR. MILLER FIT EACH OF THOSE?

HE TESTED MR. MILLER, HIMSELF AT THE PENALTY PHASE. HE CAME OUT WITH A SCORE OF 64. THAT IS THE FIRST CRITERIA. AS FAR AS AGE OF ONSET, THERE WERE RECORDS, EXPERT TESTIFIED ABOUT THESE, AND THEY ARE ALSO IN THE RECORD HERE. HE WAS TESTED TWICE AT THE AGE OF 17. BOTH EVALUATERS FOUND HIM TO BE MENTALLY RETARDED AT THAT TIME. HE WAS IN THE SEVENTH GRADE, I BELIEVE, AT THAT TIME. HIS SCORES ON THOSE TESTS WERE 59 AND 60. WITH REGARD TO WHETHER HE IS TRULY DISABLED, I THINK THERE IS A TREMENDOUS AMOUNT OF EVIDENCE OF THAT IN THE RECORD MR. MILLER HE HAS NEVER LIVED ON HIS OWN THAT I CAN SEE. HE HAS LIVED WITH A SISTER OR BROTHER OR TWO SISTERS AT DIFFERENT POINTS IN HIS LIFE. THEY WOULD ALLOW HIM TO LIVE THERE. HE WOULD HAVE JOBS. THEY WOULD RECEIVE HIS PAYCHECK. THEY WOULD GIVE HIM MONEY TO EAT OR PROVIDE ROOM AND BOARD FOR HIM. THERE IS JUST, ACADEMICALLY AND SOCIALLY, HE WAS PICKED OUT AT VERY EARLY AGE, FIRST GRADE, SECOND GRADE, AS BEING MENTALLY AND SOCIALLY, I SUPPOSE NOT SOCIALLY RETARDED BUT, YOU KNOW, EDUCATIONALLY AND ACADEMICALLY DISABLED, TO AN EXTREME DEGREE. I THINK THAT IS VERY CLEAR EVIDENCE. I HAVE TO AGREE WITH MY COLLEAGUE. I AM NOT REALLY SURE WHY THE STATE IS CONTESTING IT IN THESE CASES, BECAUSE IT JUST SEEMS LIKE IT WOULD BE A COMPLETE WASTE OF TIME TO DO THIS OTHER OVER.

THE MARSHAL HAS TURNED ON THE LIGHT TO WARN US THAT WE ARE USING SOME OF YOUR REBUTTAL TIME.

OKAY. LET ME JUST MAKE ONE MORE POINT THEN, TO ADDRESS JUSTICE WELLS'S QUESTION REGARDING THE PROCEDURE IF THERE IS A PRETRIAL PROCEEDING, IN WHICH THE JUDGE MAKES A DETERMINATION AND A JUDGE FINDS THAT, FINDS ADVERSE TO THE STATE, ONE WAY THAT THIS COURT HANDLED ALL OF THOSE, IF YOU COULD HAVE AN INTERLOCUTORY APPEAL, AT THAT POINT, THE STATE WOULD BE ALLOWED TO MAKE TO THIS COURT, TO ADDRESS THE JUDGE'S FINDING. AND THEN AFTER THAT APPEAL IS RESOLVED, PROCEED.

BUT THERE IS NO PROVISION IN THE CONSTITUTION, FOR THERE TO BE AN APPEAL TO THIS COURT IN A CASE SHORT OF THEIR BEING A SENTENCE OF DEATH, AND WE SO HELD IN STATE VERSUS FOURTH DISTRICT COURT OF APPEALS.

SO YOU GUYS COULDN'T CREATE THAT? [LAUGHTER]

I THOUGHT IT WAS A GREAT IDEA ANYWAY, THANK YOU VERY MUCH.

CHIEF JUSTICE: GOOD MORNING.

GOOD MORNING, YOUR HONORS. MAY IT PLEASE THE COURT. I AM CAROL DITTMAR FROM THE ATTORNEY GENALWAYS OFFICE, REPRESENTING THE APPELLEE IN THESE CASES. WITH ME AT COUNSEL TABLE IS CAROLYN SNURKOWSKI, IN THE MILLER CASE, AND IN THE THOMAS CASE IS GARY MILLIGAN. WHAT I WOULD LIKE TO DO IS ADDRESS THE LEGAL ISSUES AND THE QUESTIONS WHICH THE COURT HAS ISSUED, AND ALLOW MY CO-COUNSELS TO ADDRESS THE PARTICULAR FACTS OF THE MILLER AND THOMAS CASES. THE CONSTITUTIONAL RIGHT THAT WAS CREATED IN ATKINS IS, BOTH, WAIVEABLE AND CAN BE PROCEDURALLY DEFAULTED, AND THAT IS APPARENT FROM THE NATURE OF THE CONSTITUTIONAL RIGHT, AS WELL AS THE FLORIDA STATUTE, WHICH HAS BEEN PROMULGATED, AND IS CERTAINLY RECOGNIZED IN ATKINS. AS SO MANY OF THE STATE STATUTES WHICH BASICALLY GAVE RISE TO THE ATKINS DECISION IS ALL OF THESE STATE STATUTES, WHICH CREATED THIS RIGHT, A AND MOST OF THOSE STATUTES ARE PERSPECTIVE ONLY. MOST OF THOSE STATUTES RECOGNIZE THAT THIS IS AN ISSUE THAT CAN BE WAIVED. THEREFORE THAT IS WHAT THE NATIONAL CONSENSUS IS, AND ATKINS CLEARLY SAYS WE ARE GOING TO LEAVE IT TO THE STATES. WE ARE NOT GOING TO SAY EXACTLY WHAT GROUP OF PEOPLE IS CONSIDERED TO BE WHOIBTED BY ECKTSCUTION -- PROHIBITED BY EXECUTION IN THIS OPINION. WE ARE GOING TO ALLOW THE STATE TO DECIDE.

UNLIKE EXECUTING SOMEONE UNDER 15 OR 16 OR EXECUTING SOMEBODY THAT IS INCOMPETENT.

YES.

THAT THE, IF COUNSEL DIDN'T, THEY WOULD HAVE TO RAISE IT IN THE FIRST DIRECT APPEAL, EVEN BEFORE ATKINS CAME OUT, THAT THE ISSUE OF MENTAL RETARDATION, WE WOULD HAVE TO ARGUE IT WAS UNCONSTITUTIONAL.

THAT'S CORRECT.

BOTH THINGS. BOTH THINGS, OR JUST HAVE TO AT LEAST RAISE THAT THE PERSON WAS MENTALLY RETARDED?

AT LEAST RAISE THE ISSUE THAT THE PERSON WAS MENTALLY RETARDED.

IT WOULDN'T REQUIRE THAT THEY LIKE IN MR. MILLER'S CASE, THAT THEY HAD ACTUALLY SAID IT WAS UNCONSTITUTIONAL?

I THINK THAT IS A CLOSER QUESTION. I THINK TO PRESERVE THE ATKINS QUESTION, THEY NEEDED TO HAVE MADE THE ARGUMENT THAT IT IS UNCONSTITUTIONAL TO EXECUTE A MENTALLY RETARDED DEFENDANT, SO I THINK IT IS A QUESTION OF PRESERVATION OF ERROR, ESPECIALLY IN THE THOMAS CASE.

BUT WE HAD A SITUATION IN FLORIDA, IN WHICH THIS COURT HAD SEVERAL CASES, ONE OF WHICH WAS A RECENT CASE, RECENT AT LEAST SINCE I WAS HERE, IN WHICH THIS COURT HELD THAT THERE WAS NO CONSTITUTIONAL INFIRMITY FOR MENTAL RETARDATION, AND SO THAT WE HAD, THE DEFENDANTS HAD A RIGHT TO RELY UPON THE FACT THAT THIS COURT HAD SPOKEN ON THAT ISSUE. THEN THE LEGISLATURE CAME ALONG AND MADE IT PROSPECTIVE, AND WE HAVE A CASE OUT THERE THAT HONORED THAT PROSPECTIVE. NOW, THE U.S. SUPREME COURT CAME ALONG AND CHANGED LANDSCAPE, AND WHAT CONCERNS ME IS THAT THIS IS TO A DEGREE, AKIN TO FORD VERSUS WAINWRIGHT, IN THAT WE HAVE A CONCERN ABOUT WHETHER THESE INDIVIDUALS ARE DEATH, WHETHER THE SENSE -- WHETHER THE SENTENCE CAN BE CARRIED OUT, AND SO DON'T WE AT LEAST HAVE TO PROVIDE AN OPPORTUNITY FOR EACH DEFENDANT TO RAISE THIS ISSUE ON THE BASIS OF ATKINS.

I DON'T THINK YOU HAVE TO DERIVE AN OPPORTUNITY TO EVERY DEFENDANT CURRENTLY ON DEATH ROW TO RAISE THIS ISSUE. WHEN THERE HAS BEEN ABSOLUTELY NO PRIOR ALLEGATION OF LOW INTELLIGENCE, NO PRIOR ALLEGATION OF MENTAL RETARDATION YOU HAVE HAD A PENALTY PHASE, WHERE PRESUMABLY ALL RELEVANT MITIGATION EVIDENCE HAS BEEN PRESENTED. YOU KNOW, IF THAT OPPORTUNITY WAS NOT TAKEN TO PROVIDE EVIDENCE OF MENTAL RETARDATION AT THAT POINT AND IT IS NOT GOING TO COME BACK, CERTAINLY IN POSTCONVICTION IT CAN COME UP UNDER AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM, IF IT WASN'T PRESENTED INITIALLY IN PENALTY PHASE.

BUT THERE ARE A LOT OF OLDER -- THERE ARE A LOT OF OLDER CASES STILL AROUND, WHERE, LIKE THE EARLY '80s, FOR EXAMPLE, WHERE THE PENALTY PHASES WEREN'T REALLY AS IN-DEPTH, AS THE PENALTY PHASES ARE NOW, AND SO IT CONCERNS ME THAT SOMEONE WHO MAY NOT HAVE, WHOSE COUNSEL MAY NOT HAVE RAISED SUCH AN ISSUE, NOW IS FOREVER PRECLUDED, EVEN IF HE CAN CLEARLY DEMONSTRATE THAT THE CLIENT IS, IN FACT, RETARDED? I MEAN, DOESN'T THAT JUST FLY IN THE FACE OF EXECUTING SOMEONE WHO IS RETARDED? THAT IS WHAT ATKINS STANDS FOR. YOU CANNOT DO THAT!

IF YOU HAVE A SITUATION WHERE A DEFENDANT IS CLEARLY MENTALLY RETARDED, AND THIS WAS NOT PRESENTED AT THE PENALTY PHASE, IT WAS NOT RAISED IN POSTCONVICTION, AS INEFFECTIVE ASSISTANCE OF COUNSEL FOR THE FAILURE TO PRESENT IT IN PENALTY PHASE, I DON'T SEE HOW THIS COURT CAN GET TO THE ANSWER. YOU KNOW, THE ISSUE IN "FORBES" WAS RAISED TO THE DEFENDANT AT THE TIME OF EXECUTION, WHEREAS WHAT ATKINS IS LOOKING AT IS CULPABILITY AT THE TIME OF THE CRIME, SO IT IS NOT LIKE THE DEFENDANT --

AS TO HIS CULPABILITY, MENTAL RETARDATION WOULD NOT CHANGE THE FACT THAT HE COULD BE CONVICTED OF FIRST-DEGREE MURDER. WHAT IT REALLY SAYS IS THAT YOU CANNOT EXECUTE HIM FOR THAT FIRST-DEGREE MURDER.

RIGHT. WHICH IS, BASED ON HIS REDUCED MORAL CULPABILITY. HE STILL IS LEGALLY CULPABLE AND RESPONSIBLE FOR HAVING COMMITTED THE CRIME, BUT THE REDUCED MORAL CULPABILITY IS WHAT RELEASES HIM FROM THE POSSIBILITY OF EXECUTION. BUT IF YOU LOOK AT THE FLIP SIDE OF IT AND YOU SAY IT IS GOING TO BE A FUNDAMENTAL ERROR ISSUE, WHICH CAN BE RAISED AT ANY TIME BY ANY DEFENDANT, THEN THESE DEFENDANTS HAVE NO REASON TO RAISE IT UNTIL A WARRANT IS SIGNED AND A DATE IS SET FOR THE EXECUTION, EVEN UNDER THE STATUTE NOW, IF HE THEY ARE GOING TO RAISE THE ISSUE, THEY PROVIDE NOTICE PRIOR TO TRIAL, AND THEY HAVE TO MOVE THE TRIAL COURT FOR A DETERMINE NATION ON MENTAL RETARDATION.

WELL, THAT IS DIFFERENT.

CHIEF JUSTICE: I DO --

I DO HAVE --

FIRST YOU SAID IT WAS WAIVEABLE AND SHOULD BE FORFEITED. NOW YOU ARE SAYING THERE SHOULD BE SOME TIME PERIOD IN WHICH THIS COURT WOULD REQUIRE DEFENDANTS TO RAISE IT. THERE ARE TWO DIFFERENT THINGS. WOULD YOU AGREE WITH THAT? THAT IS THAT ONE IS SAYING WHETHER THERE IS ANY EVIDENCE THAT THEY HAD RAISED IT BEFORE, BUT SECOND IS NOT TO LET THEM WAIT UNTIL THE DEATH WARRANT IS SIGNED TO RAISE IT. THOSE ARE TWO EXTREMES, AREN'T THEY?

WELL, THEY ARE TWO EXTREMES BUT IT IS THE SAME ISSUE, AND IT IS THE SAME PROBLEM. IF YOU SAY WE ARE NOT GOING TO HOLD THEM, WE ARE NOT GOING TO REQUIRE THEM TO RAISE THE ISSUE, THEN I THINK THAT IS WHAT --

BUT WHY ISN'T IT PERFECT SITUATION IN WHICH WE WOULD ALLOW A SUCCESSIVE 3.851? I MEAN, IT IS A CHANGE IN THE LAW, WHICH 3.8 -- THE CONSTITUTIONAL LAW, WHICH 3.851, COMING OUT OF 3.850, SAYS IS A BASIS TO DO IT, AND THEN YOU HAVE GOT A ONE-YEAR TIME PERIOD, IN WHICH TO RAISE THE ISSUE. AND THAT IT WOULD FIT, UNDER A WHITT-TYPE OF ANALYSIS, AND IT SEEMS TO ME THAT STOVEAL ISSUE IN THIS, WOULD BE THE IMPACT ON THE JUDICIAL SYSTEM, BUT THAT WE ARE, REALLY, DEALING WITH A LIMITED NUMBER OF PEOPLE THAT COULD, REALLY, RAISE THIS ISSUE.

RIGHT. AND WE ARE, ALSO, DEALING WITH A LIMITED TIME, AND WE ARE ALMOST AT THE POINT WHERE THAT TIME FRAME IS OVER, BECAUSE WE ARE COMING UP ON JUNE. ATKINS IS GOING TO BE A-YEAR-OLD. IF THERE IS SOMEBODY WHO FEELS LIKE THEY NEEDED TO FILE THAT SUCCESSIVE MOTION, THOSE SHOULD ALREADY BE IN THE WORKS. AT THIS POINT, THERE SHOULDN'T, CERTAINLY AFTER JUNE, SHOULDN'T, IT SHOULDN'T HAVE NEW POSTCONVICTION ON CASES WHERE POSTCONVICTION PROCEEDINGS ARE COMPLETE. YOU SHOULDN'T BE COMING BACK AFTER JUNE, CERTAINLY AT THAT POINT THERE IS GOING TO BE A TIME BAR, BECAUSE ATKINS WILL HAVE BEEN OUT FOR MORE THAN A YEAR, SO UNDER THAT SCENE AIR YO AND WHEN YOU HAVE -- UNDER THAT SCENARIO AND WHEN YOU HAVE A PERSON THAT HAS CONSISTENTLY CREATED, PRESENTED EVIDENCE ABOUT MENTAL RETARDATION AND RAISED THE EIGHTH AMENDMENT CLAIM, I THINK THAT IS THE APPROPRIATE PROCEDURE FOR THEM TO FILE THE SUCCESSIVE MOTION AND TO LITIGATE IT AT THAT POINT THE, I DO, DISAGREE ON THE RETROACTIVITY. HENDRY DID NOT HOLD THAT THIS WAS, THAT THIS WAS RETROACTIVE, BECAUSE THAT WASN'T THE HOLDING OF THE COURT. THAT WAS MERE DICTA, AND ATKINS, ITSELF, DOES NOT PROVIDE A BASIS TO GO BACK AND APPLY IT RETROACTIVELY, SO I THINK THAT IS AN ISSUE THAT HAS TO BE GIVEN FURTHER CONSIDERATION. I DON'T THINK YOU CAN JUST ACCEPT WHAT HENDRY SAYS, WITHOUT DOING THE ANALYSIS AND CONCLUDING THE APPROPRIATE RESOLUTION, BUT I THINK, AGAIN, THE QUESTION IS GOING TO BE MORE OF A PRESERVATION OF ERROR QUESTION IN THOSE CASES, WHERE YOU ARE GOING BACK AND LOOKING AT RETROACTIVITY.

IF WE ARE GOING TO FOLLOW THE STATUTORY PROCEDURE, WHICH YOU SEEM TO BE ASKING, DOES THAT IN ANY WAY IMPACT THE DEATH FINDING ELIGIBILITY, THAT -- THE DEATH PENALTY ELIGIBILITY, THAT THE JURIES, THE RING SITUATION THAT WE ARE SEEING IN MORE AND MORE CASES. WHAT IS GOING TO BE THE IMPACT ON THAT?

I DON'T THINK RING HAS ANY IMPACT ON THIS ISSUE. I THINK THIS COURT HAD THAT QUESTION IN THE BOTTOSON CASE AND REJECTED THE ARGUMENT THAT RING REQUIRES A JURY DETERMINATION ON MENTAL RETARDATION.

I AM NOT SURE IF YOU CAN, IF THAT IS WHAT BOTTOSON HOADES, I AM NOT SURE IT SAYS THAT. LET'S ASSUME THAT BOTTOSON HASN'T CROSSED THAT BRIDGE.

OKAY. THE QUESTION IS AS TO WHETHER OR NOT, AND AGAIN THAT DEATHENLY JIBLT IS A -- DEATH ELIGIBILITY IS A SEMANTIC DIFFICULTY, BECAUSE IT MEANS DIFFERENT THINGS IN DIFFERENT CONTEXTS. THE DEFINITION OF CAPITAL MURDER DOES NOT REQUIRE THAT THE DEFENDANT NOT BE MENTALLY RETARDED AT THE TIME. IT IS NOT AN ELEMENT OF CAPITAL MURDER THAT HAS TO BE FOUND BY A JURY. AND I THINK THE CASES THAT, WHEN THE ISSUE, I KNOW THE ISSUE WAS BRIEFED IF BOTTOSON DIDN'T HOLD THAT WAY, THE BRIEFS CERTAINLY EXPLORED THE ISSUE, AND THE CASES THAT TALKED ABOUT THE PRETRIAL COMPETENCY DETERMINATIONS AND THE SIMILAR ISSUES THAT ARE TRADITIONALLY HAND BY A JUDGE, ARE SIMILAR TO THIS ISSUE AND THE WAY THIS ISSUE SHOULD BE HANDLED, AS OPPOSED TO BEING AN ESSENTIAL ELEMENT OF A CRIME, WHICH IS WHAT RING IS CONCERNED WITH.

WOULD YOU DEAL WITH THE ISSUE AND -- THE ISSUE OF BURDEN OF PROOF? ANOTHER COOPER CASE, WHICH IS RELIED UPON BY COUNSEL, IS A PRETRIAL COMPETENCY DETERMINATION CASE, AND THIS COURT, IN MEDINA, LOOKING AT THE COMPETENCE TO BE EXECUTED QUESTION, SAID COOPER'S CONCERN WITH DUE PROCESS IS NOT IMPLICATED AT THIS POINT, BECAUSE WE ARE POSTCONVICTION. WE ARE POST ALL OF THESE THINGS. THE STATE HAS A HIGHER INTEREST. THERE ARE A LOT OF CONSIDERATIONS WHICH COOPER IS NOT ADDRESSING, AND I THINK THIS FITS MORE INTO THE MEDINA, AND MENTAL RETARDATION IS MORE OF AN AFFIRMATIVE DEFENSE, THE BURDEN IS ON THE DEFENSE, AND WHAT THE UNITED STATES SUPREME COURT HAS SAID WITH AN AFFIRMATIVE DEFENSE YOU CAN PUT ANY BURDEN OF PROOF ON IT. YOU CAN HAVE BEYOND A REASONABLE DOUBT, WHICH SOME STATUTES HAVE SAID, ALSO, OR SOME STATES HAVE SAID WITH REGARD TO MENTAL RETARDATION. I, ALSO, THINK THAT THE BURDEN OF PROOF IS A SUBSTANTIVE QUESTION AND THAT, WHEN THE LEGISLATURE HAS SAID THE BURDEN OF PROOF IS CLEAR AND CONVINCING EVIDENCE, THAT THIS COURT SHOULD ABIDE BY THAT. I THINK THAT IS A QUESTION OF SUBSTANTIVE LAW.

WHERE DO YOU DRAW THAT CONCLUSION? THE SUBSTANTIVE BASIS TO THAT?

WELL, I THINK IT IS JUST SUBSTANTIVE DUE PROCESS OF WHEN YOU ARE DEFINING WHAT THE PERSON'S RIGHT ACTUALLY IS AND HOW THEY CAN SECURE THAT RIGHT IN THE COURTS. I THINK IF YOU, YOU KNOW, THE TRICK UNDER ATKINS IS, AGAIN, DEFINING THIS CLASS OF PEOPLE FOR WHOM EXECUTION IS PROHIBITED AND IN ORDER TO BE A MEMBER OF THAT CLASS, I THINK THAT QUESTION, WHETHER OR NOT YOU ARE A MEMBER, IS A SUBSTANTIVE QUESTION. SO I WOULD ARGUE THAT IT SHOULD BE CLEAR AND CONVINCING, AND EVEN IF THAT IS MORE OF A PROCEDURAL QUESTION, I THINK THE LEGISLATURE CONSIDERED IT, AND I THINK THEY, YOU KNOW, AGAIN, GOING BACK TO ATKINS AND WHAT ATKINS COMES OUT OF, IS THIS IS WHAT THE LEGISLATION ACROSS THE COUNTRY HAS SAID.

IS THAT WHAT, HAS THE ISSUE OF THE BURDEN OF PROOF BEEN DEALT WITH, IN A NUMBER OF STATES, BY LEGISLATION, ON THIS MENTAL RETARDATION ISSUE?

YES. THEY SEEM TO BE -- IT MAY SEEM TO BE DIFFERENCE. IT IS EVERYTHING FROM EVIDENCE TO CLEAR AND CONVINCING TO REASONABLE DOUBT. I DON'T KNOW THAT THEY HAVE ACTUALLY ADDRESSED IT UNDER COOPER. I DON'T KNOW THAT I AM AWARE OF A CASE WHERE THEY HAVE ANALYZED COOPER IN CONNOTATION TO ATKINS, AND THE LEGISLATION PRIOR TO ATKINS OR DISCUSSED IN THE ATKINS OPINION, THE BURDEN OF PROOF IS ALL OVER THE PLACE, SO I DON'T KNOW THAT THERE IS A NATIONAL CONSENSUS WITH REGARD TO THAT ISSUE. THERE IS NO CLEAR SHOWING, ONE WAY OR THE OTHER, WHAT, FOR LACK OF A BETTER WORD, THE STANDARD BURDEN OF PROOF WOULD BE.

BUT IS THERE, MOST STATES DOING THIS BY A LEGISLATIVE PRONOUNCEMENT OR MOST OF THEM DOING IT BY COURT PRONOUNCEMENT, OR DO YOU KNOW?

I THINK IT IS A MIXED BAG, AND, OF COURSE THERE WERE A NUMBER OF STATES, AGAIN, WHO ALREADY HAD SOME LEGISLATION IN PLACE LIKE FLORIDA. IT MAY NOT, YOU KNOW, IT MAY NOT BE EXACTLY WHAT ATKINS HAD IN MIND, BUT IT, AGAIN, IS WHAT LED THE COURT TO DECIDE THAT THERE IS A NATIONAL CON SENSE YOU GET ON THIS ISSUE, AND -- CONSENSUS ON THIS ISSUE, AND I KNOW THAT THERE ARE SEVERAL STATES WHERE THE LEGISLATURE HAS NOT ATTEMPTED TO TAKE ANY ACTION UNDER ATKINS, AND I THINK THE COURTS, IN THOSE CASES, I HAVE SEEN SOME DECISIONS WHERE THE COURTS HAVE SAID THIS IS WHAT WE ARE GOING TO DO, AND BECAUSE THE LEGISLATE YOUR HAS EVEN -- THE LEGISLATURE HAS ENACTED, WE ARE GOING TO GO AHEAD AND TELL YOU THE DEFINITION IN THE PROCEDURES. I HAVE SEEN OTHER PLACES WHERE THE COURTS HAVE SAID THAT IS NOT OUR RESPONSIBILITY, SO I THINK IT IS REALLY KIND OF A MIXED BAG AS TO WHAT, AND I DON'T KNOW FROM COURT TO COURT, I DON'T KNOW IF THEY ARE ACTUALLY DIFFERENT SEPARATION OF POWERS ARGUMENTS OR WHAT MAKES THE DECISION, BUT IT DOES SEEM TO BE JUST A MIXED BAG ACROSS THE BOARD.

ARE WE SO CLEAR ABOUT WHAT IS AGAIN, SINCE WE ARE TRYING TO GUIDE TRIAL JUDGES WHEN WE DO THIS AS WELL, TO COME UP WITH SOMETHING WORKABLE, THE MITIGATING CIRCSTAND OF MENTAL -- CIRCUMSTANCE OF MENTAL RETARDATION, BECAUSE THE MITIGATOR HAS TO BE ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE.

YES.

AND SO IN TERMS OF JUST TRYING TO MAKE, HAVE THIS WORKABLE, WHAT IS, SINCE ONE OF THE STANDARDS IS THE IQ, WHICH MORE OFTEN THAN NOT, ALTHOUGH THERE MAY BE SOME VARIATION, YOU ARE TALKING ABOUT A STANDARDIZED TESTING, AND IF IT HAS TO BE ONSET BEFORE 18, PRESUMABLY THAT IS BASED, IN MANY CASES, ON THE SCHOOL RECORDS.

RIGHT.

SO I GUESS IN TERMS OF REALLY FOR THE TRIAL JUDGE TO KNOW, WELL, WHAT IS IT THAT IS GOING TO BE LESS THAN CLEAR AND CONVINCING BUT MORE THAN A PREPONDERANCE OF THE EVIDENCE, HOW IS THAT REALLY, HOW WOULD YOU SEE IT AS BEING WORKABLE, AND WITH THE STANDARD OF REVIEW PROBABLY BEING THE SAME ANYWAY, WHICH IS COMPETENT, SUBSTANTIAL EVIDENCE TO SUPPORT THE JUDGE'S FINDING?

I DON'T SEE A TRIAL COURT REALLY STRUGGLING WITH FINDING SOMETHING LESS THAN CLEAR AND CONVINCING OR MORE THAN A PREPONDERANCE OF THE EVIDENCE. I THINK IF THIS COURT SAYS WHAT THE STANDARD IS, THE LEGISLATURE SAYS WHAT THE STANDARD, THE TRIAL COURT IS GOING TO FOLLOW THE STANDARD. I DON'T THINK THEY ARE GOING TO LOOK FOR SOMETHING AMORPHOUS IN BETWEEN, BUT --

WHAT DOES THAT MEAN, AS A PRACTICAL MATTER, FROM WHAT OUR CASES HAVE SAID?

I THINK THAT MEANS THAT THE FACT FINDER HAS TO HAVE MORE CERTAINTY IN THE FACT THAT IT IS BEING FOUND. I THINK IT IS CONFIDENCE IN THE ULTIMATE PAT QUESTION, THE ULTIMATE -- ULTIMATE QUESTION, THE ULTIMATE FACTUAL QUESTION THAT THE FACT FINDER IS DECIDING. I THINK THE PREPONDERANCE OF EVIDENCE, YOU MAY HAVE MORE DOUBT AS TO WHETHER THIS FACT IS ACTUALLY PROVEN BUT STILL FIND IT AS A MITIGATING FACTOR. IN FACT, I THINK THE TRIAL COURT'S FINDINGS IN THE MILLER CASE, WITH REGARD TO MENTAL RETARDATION, FITS THAT, AND I THINK HE FINDS THIS PREPONDERANCE OF THE EVIDENCE, BUT YOU CAN TELL THAT HE IS VERY SKEPTICAL ABOUT THIS FINDING, JUST FROM THE LANGUAGE OF THE SENTENCING ORDER. CERTAINLY YOU KNOW, YOU CAN'T SAY WHETHER THE JUDGE WOULD SAY THIS IS CLEAR AND CONVINCING OR NOT. I THINK READING THE ORDER, IT SOUNDS LIKE THE JUDGE ISN'T CONVINCED, BUT UNDER PREPONDERANCE OF THE EVIDENCE, YOU KIND OF GIVE HIM THE BENEFIT OF THE DOUBT, AND I WILL GO AHEAD AND FIND THE MITIGATION AND WEIGH IT, BUT WHEN YOU ARE TALKING ABOUT A COMPLETE BAR, A ABSOLUTE BAR TO EXECUTION, YOU HAVE GOT TO LOOK AT THE FACT THAT THE DEFENDANT IS GOING TO BE HIGHLY MOTIVATED. THEY ARE TAKING THE STANDARDIZED TESTS. HOW MOTIVATED ARE THEY GOING TO BE TO DO WELL ON THE STANDARDIZED TESTS WHEN THEY KNOW WHAT IS AT STAKE, AND THESE ARE THE THINGS THAT THE EXPERTS CAN CERTAINLY TAKE INTO ACCOUNT WHEN THEY RENDER THEIR OPINIONS, BUT I THINK IT IS ANOTHER REASON AND THIS COURT IN MEDINA WENT INTO THAT WHY IT IS APPROPRIATE TO HAVE THE HIGHER STANDARD, BECAUSE YOU HAVE THE DEFENDANT WHO IS GOING TO BE IN A POSITION TO WANT TO TRY AND NOT DO HIS BEST ON THESE TESTS.

CAN YOU ADDRESS THE ARGUMENT THAT THE DETERMINATION OF MENTAL RETARDATION SHOULD OCCUR BEFORE THE TRIAL, IN ORDER TO SAVE A LOT OF TIME AND ENERGY IN GOING THROUGH A DEATH PENALTY PHASE, AND ALSO BECAUSE, ONCE A DEFENDANT IS NOT DEATH ELIGIBILITY -- DEATH-ELIGIBLE, THAT KIND OF CHANGES THE COURSE OF THE DYNAMIC AND A TRIAL AND A PLEA IS MORE LIKELY?

IN HINDSIGHT, WE CAN ALWAYS GO BACK AND DO IT MORE EFFICIENTLY, IF YOU KNOW THE ANSWER, BUT YOU HAVE TO LOOK AT STARTING AT THE BEGINNING AND NOT KNOWING AND HOW YOU ARE GOING TO ANSWER THE QUESTION. ONE OF THE PROBLEMS I SEE WITH THE PRETRIAL DETERMINATION, IS NOT ONLY THAT YOU HAVE THE LOGISTICS OF THE STATE TRYING TO APPEAL AN ADVERSE RULING AND THINGS LIKE THAT, BUT IF YOU HAVE A PRETRIAL DETERMINATION, YOU HAVE TO HAVE THE DEFENDANT EXAMINED BY STATE EXPERTS PRIOR TO TRIAL, AND I THINK THAT RAISES SOME CONFIDENTIALITY QUESTIONS. BECAUSE YOU RAN INTO THE SAME THING WITH NO MITIGATION, IN GETTING -- MENTAL MITIGATION, IN GETTING THE EXPERTS APPOINTED TO DO MENTAL MITIGATION PRIOR TO A TRIAL, AND I THINK THAT THERE IS NO REASON, REALLY, TO BE DECIDING AT THAT POINT, BECAUSE THE SUBSTANTIVE RIGHT IS NOT A RIGHT TO BE FREE FROM THE CAPITAL TRIAL. THE SUBSTANTIVE RIGHT IS CREATED BY OUR LEGISLATURE, TO BE FREE FROM THE DEATH SENTENCE.

BEYOND WHETHER THERE IS A RIGHT TO IT OR NOT, JUST IN TERMS OF LOGISTICS AND NOT WASTING TIME AND DEFENSE COUNSEL BEFORE TRIAL, HAS TO SPEND A LOT OF TIME ON PENALTY PHASE ISSUES AND DEFENSE PEOPLE, AND THIS WOULD BE AVOIDED, IF THIS DETERMINE NATION WAS MADE BEFORE TRIAL.

AGAIN, IF YOU KNOW WHAT DETERMINATION IS GOING TO BE MADE, IT IS EASY TO GO BACK AND ANSWER THAT, BUT IF YOU DON'T, I DON'T THINK IT IS EASY TO GO THROUGH THE STEPS TO GET THERE, AND I DON'T THINK YOU SHOULD BE PUTTING THE CART BEFORE THE HORSE AND MAKING THOSE DETERMINATIONS WHEN YOU HAVEN'T HAD THE ACTUAL TRIAL, AND YOU DON'T KNOW IF THIS PERSON, THERE ARE A LOT OF THINGS THAT CAN COME ALONG THE WAY. THE PERSON COULD GET A LIFE RECOMMENDATION OR BE CONVICTED OF SECOND-DEGREE MURDER. THERE ARE A LOT OF THINGS THAT GO ALONG WITH NOT MAKING IT NECESSARY TO HAVE A HEARING ON MENTAL RETARDATION. SO YOU CAN HAVE UNNECESSARY LITIGATION EITHER WAY. IT JUST DEPENDS ON WHAT THE OUTCOME IS GOING TO BE. YOU ARE OBVIOUSLY NOT GOING TO KNOW BEFOREHAND ON ALL CASES, SO I THINK THE LITIGATION IS GOING TO HAPPEN ANYWAY, AND THE IDEA OF DOING IT BEFORE TRIAL IS GOING TO CREATE A LOT OF PRETRIAL PROBLEMS AND JUST PUT THE TRIAL OFF THAT MUCH MORE, WHEN I I THINK WE NEED TO BE -- WHEN I CAN WE NEED TO BE GETTING THESE -- WHEN I THINK WE NEED TO BE GETTING THESE CASES TO TRIAL AND MOVING THESE CASES ALONG.

BUT ON THE OTHER HAND, FROM MY EXPERIENCE, WOULDN'T IT GIVE THE STATE POSSIBLY BETTER INFORMATION ABOUT THE FUNCTIONALITY OF THE DEFENDANT AND AVOID VICTIMS HAVING TO TESTIFY AT TRIALS, AND OTHER ISSUES, AND AS JUSTICE CANTERO SAID, MAKE IT A MORE REASONED PROCESS BETWEEN THE STATE, THE DEFENDANT AND THE COURT, TO BE ABLE TO DETERMINE, IS IT WORTH GOING DOWN THIS LONG ROAD, OR CAN WE MAKE THE DETERMINATION UP FRONT? IF IT IS GOING TO BE A JUDICIAL DETERMINATION, I MAY AGREE WITH YOU MORE IF IT IS GOING TO BE A JURY FINDING, BUT IF YOU ARE GOING TO LEAVE IT UP TO THE JUDGE TO MAKE THE DECISION, WOULD IT NOT BE MORE APPROPRIATE TO DO IT PRETRIAL, AND THEREFORE HAVE THAT DYNAMIC, AND THE PLOS OF THE STATE AND THE -- PROCESS OF THE STATE AND THE DEFENDANT NEGOTIATING AND FIND OUT WHAT IS GOING ON?

I THINK IF YOU HAVE A CLEAR-CUT CASE, THEN YOU HAVE A PROSECUTOR WHO IS GOING TO BE AWARE OF THE FACTS ALSO. I THINK IN MOST CASES, IT IS GOING TO BE VERY HIGHLY CONTESTED, BECAUSE EVEN THE INDIVIDUALS THAT ARE CURRENTLY ON DEATH ROW WITH THE LOWEST IQ SCORES, YOU HAVE THIS DEBATE ABOUT ADAPTIVE FUNCTIONING, AND I THINK EVEN THE TWO CASES THAT ARE HERE THIS MORNING, YOU HAVE THIS DEBATE, AND EVEN IN CASES WHERE YOU, THE DEFENSE IS GOING TO SAY IT IS ABSOLUTELY CLEAR-CUT, THERE IS NO QUESTION, BUT YOU ARE STILL GOING TO HAVE THE QUESTION THAT IS GOING TO HAVE TO BE LITIGATED. I DON'T THINK YOU ARE GOING TO HAVE AN EASY ANSWER ON IT. IF IT WERE AN EASY ANSWER --

ESPECIALLY IN CASES LIKE THE THOMAS CASE, WHERE YOU HAVE SERIOUS SUBSTANCE ABUSE OR ALLEGATIONS OF IT, AND I AGREE IT IS DIFFICULT.

I THINK YOU MAY GET INTO A LOT OF FACTORS. YOU KNOW, THERE MAY BE FACTORS OUTSIDE THE NARROW DEFINITION OF MENTAL RETARDATION THAT ARE GOING TO HAVE AN EFFECT, TOO, SO THAT YOU CAN ALMOST HAVE, I MEAN YOU GET ON THE ADAPTIVE SKILLS. YOU ARE GOING TO GET INTO THE LIFE BACKGROUND AND THE LIFE HISTORY, AND I THINK THESE ARE GOING TO BE EXTENSIVE HEARINGS. I DON'T THINK THIS IS GOING TO BE THE THING WHERE YOU JUST HAVE LIKE THE PRETRIAL COMPETENCY DETERMINATION. YOU HAVE A COUPLE OF DOCTORS COME IN AND THAT IS THE ANSWER TO THE QUESTION. YOU DON'T HAVE THESE DOCTORS INVOLVED AT THIS POINT, SO I DON'T KNOW THAT IT IS GOING TO BE NECESSARY TO HAVE THAT EARLY.

IN LOOKING AT THE ATKINS DECISION AND THEIR FOOTNOTE 5, THEY ARE TALKING ABOUT ONLY 1.3 PERCENT OF THE POPULATION HAS AN IQ OF 70 OR 75 OR LOWER, SO WE ARE TALKING ABOUT A VERY SMALL PERCENTAGE, BUT WHEN THEY ARE THERE, THEY ARE GENUINE, YOU KNOW, SOMEBODY WHO, THROUGHOUT THEIR LIFE, HAS HAD THAT AS THEIR IQ AND HAS BEEN CLASSIFIED AS MENTALLY RETARDED. MY CONCERN IS, AND I AM NOT SURE I DISAGREE WITH YOU THAT THE MORE INFORMATION THE JUDGE HAS, IT MAY HELP, THAT ARE WE REALLY SAYING THAT THESE, WHAT LOOSE TO BE OBJECTIVE -- WHAT LOOSE TO BE -- WHAT LOOKS TO BE OBJECTIVE STANDARDS, SUCH AS THE IQ AND ONSET, THAT WHEN WE GET INTO OBJECTIVE FUNCTIONING, THAT THAT IS GOING TO BE SUBJECTIVE DETERMINATIONS, THAT THE STATE CAN JUST ARGUE, WELL, SOMEBODY WHO COMMITTED THIS MURDER HAS TO HAVE BEEN, YOU KNOW, CAN'T BE MENTALLY RETARDED BECAUSE THEY COULDN'T --

BEHAVIOR WELL ENOUGH TO GO OUT AND COMMIT THE CRIME.

IS THAT THE KIND OF THING --

I THINK THE EXPERTS IN THIS AREA ARE FAMILIAR WITH THE ADAPTIVE SKILLS ELEMENT OF THE MENTAL RETARDATION DEFINITION. THERE ARE SOME OBJECTIVETY TESTS. THERE IS THE VILE -- OBJECTIVE TESTS THERE. IS THE VIOLIN SCALE AND TESTS THAT CAN BE ADAPTED EVEN TO THE CORRECTIONAL SITUATION. I THINK THAT IS SOMETHING THAT EXPERTS, AS FAR AS I CAN TELL, EXPERTS IN THE FIELD DISAGREE ON THE BEST WAY TO MEASURE THAT AND HOW MANY PEOPLE YOU NEED TO TALK TO AND WHAT KIND OF RECORDS YOU NEED TO V I THINK THAT IS SOMETHING THAT IS -- TO HAVE. I THINK THAT IS SOMETHING THAT IS BEST LEFT TO THE MEDICAL EXPERTS ON RETARDATION, BUT I DON'T THINK IT IS AS SUBJECTIVE AS YOU ARE MAKING IT SOUND LIKE. I DON'T THINK IT IS MORE OBJECTIVE THAN THAT.

ARE YOU GOING TO RESPOND TO THOMAS?

MY CO-COUNSELS RESPOND AND I AM RUNNING OUT OF TIME, SO I AM GNK THINKING ILL GO AHEAD -- SO I AM THINKING I WILL GO AHEAD AND MAYBE TURN IT OVER TO MR. MILLIGAN FOR THAT. THANK YOU VERY MUCH.

GOOD MORNING. GARY MILLIGAN ON BEHALF OF THE STATE OF FLORIDA, HERE FROM THE ATTORNEY GENERALS OFFICE, AND I WILL BE SPEAKING TO ANY SPECIFIC QUESTIONS YOU HAVE AS TO THE DEFENDANT MR. THOMAS. THAT WAS BE MR. DAVIS'S CLIENT.

WHAT ABOUT MR. DAVIS'S ARGUMENT THAT THIS COURT -- THAT THE COURT MADE A FINDING, IN THOMAS OF MENTAL RETARDATION?

FOR ONE THING, THE FINDING WAS ONLY MADE AS A MITIGATOR. IT WASN'T EVEN MADE AS A STATUTORY MENTAL MITIGATOR. IT DOESN'T EVEN RISE TO THE LEVEL OF A STATUTORY MENTAL MITIGATOR. BUT IN ADDITION TO THAT --

WAS THERE A MENTAL RETARDATION IN THE STATUTE?

NO, BUT THEY ACTUALLY DID CONSIDER IT AS PART OF THE STATUTORY MITIGATOR OF EXTREME MENTAL PROBLEMS, AND THERE WAS ACTUALLY CONSIDERED IN THE SENTENCING ORDER YOU SEE, THEY ACTUALLY DISCUSS WHETHER OR NOT HIS RETARDATION ROSE TO THAT LEVEL, AND THEY FOUND THAT IT DIDN'T.

HOW DOES THIS FIT IN WITH ATKINS? LET'S ASSUME THAT THE DEFENDANT HERE, WHO IS IN THE SAME POSTURE AS ATKINS, THAT IS THAT IN THE STATE COURT, CLAIMED THAT IT WOULD BE UNCONSTITUTIONAL TO EXECUTE HIM, BECAUSE HE WAS MENTALLY RETARDED, AND THAT HE WOULD BRING FORTH PROOF TO DEMONSTRATE THAT HE WAS MENTALLY RETARDED, AND THEREFORE THAT, IF THE COURT FOUND HIS CONSTITUTIONAL CLAIM VALID, THAT HE WOULD NOT BE SUBJECT TO EXECUTION, AND HE TOOK THIS TO THE UNITED STATES SUPREME COURT, AND THE COURT HELD, AS IT DID IN ATKINS, WHAT IS THERE LEFT FOR HIM TO DEMONSTRATE, IF THAT, INDEED, WAS HIS CLAIM? HIS CLAIM WAS HE WAS MENTALLY RETARDED, AND HE PUT ON PROOF TO THAT EFFECT. THE TRIAL COURT MADE A FINDING TO THAT EFFECT. HE CLAIMED THAT, UNDER THE U.S. CONSTITUTION, THAT IT WOULD BE CRUEL AND UNUSUAL PUNISHMENT TO EXECUTE HIM, AND THEREFORE THAT THE STATE WOULD BE CONSTITUTIONALLY-BARRED, SO HE IS PRESERVED, HIS CLAIM. WHAT ELSE WOULD HE HAVE TO DO, TO PRESERVE THAT, AND WOULDN'T THE ATKINS DECISION ACTUALLY SAY YOU PRESERVED IT, YOU PROVED IT, AND THEREFORE THE STATE IS BARRED FROM EXECUTING YOU IN THIS PARTICULAR CASE?

WELL, WHAT WE HAVE IN THIS SITUATION, WE HAVE ATKINS, WHICH SAYS THAT WE ARE GOING TO LEAVE THE STANDARD OF WHAT MENTAL RETARDATION IS, UP TO THE STATES. THIS IN ADDITION TO WHAT MENTAL RETARDATION IS, AND NO MATTER HOW YOU LOOK AT IT, THE DEFENDANT DID NOT MEET THE STANDARD WHICH IS SET OUT IN THIS CASE, WHICH SAYS THAT ATKINS IS THE WAY THAT YOU DO IT.

YOU ARE SAYING THAT AFTER THIS DEFENDANT WAS TRIED AND HAD THE PENALTY PHASE.

RIGHT. RIGHT. AND OF COURSE ATKINS COMES OUT AFTERWARDS, TOO, AND THE STATE OBVIOUSLY, AT THE TIME OF THE PENALTY PHASE, IS NOT AWARE OF THAT.

ARE YOU SAYING THAT IN ATKINS THAT VIRGINIA, IN THE CASE, WENT BACK, THAT VIRGINIA COULD ENACT A DIFFERENT STATUTORY SCHEME OR LAWFUL SCHEME THAN WAS IN PLACE WHEN ATKINS ATTEMPTED TO PROVE MENTAL RETARDATION AT HIS TRIAL? THEY COULD HAVE CHANGED WHAT THEIR LAW WAS ABOUT WHAT MENTAL RETARDATION WAS?

I AM NOT SAYING THAT THEY COULD HAVE CHANGED IT. THEY HAD A PREEXISTING LAW. THEY COULDN'T HAVE CHANGED THE LAW.

DOESN'T FLORIDA HAVE THE PREEXISTING LAW? DON'T WE HAVE THE STATUTORY PROVISION THAT IS PREEXISTED THE STATUTORY SCHEME FOR DEATH PENALTY CASES THAT THE LEGISLATURE HAS ENACTED, AND, OF COURSE, THE MENTAL HEALTH FIELD OUT THERE HAS ALWAYS DEALT WITH THIS, BUT WE HAVE DEALT WITH THE ISSUE OF MENTAL RETARDATION, AND IN SEVERAL AREAS, WAY BEFORE THE ADOPTION OF THIS PARTICULAR SCHEME, HAVE WE NOT?

THAT'S CORRECT. BUT THE STANDARD THAT WAS ADOPTED BY THE FLORIDA LEGISLATURE IS THE PREEXISTING STANDARD THAT WAS OUT THERE, THAT WAS AT LEAST IN PLACE FOR CIVIL COMMITMENT, CIVIL RETARDATION, TYPE OF PROCEEDINGS SO THE STANDARD IS OUT THERE THAT THE FLORIDA LEGISLATURE HAS NOW ENACTED IS THE SAME ONE THAT SORT OF PREEXISTS, IF YOU ARE DETERMINE IN THE STATE WHO QUALIFIES AS MENTALLY RETARDED.

WHAT DID THE STATE DO TO, IN THIS CASE, KNOWING AT LEAST THAT IT WAS A MITIGATING FACTOR, DO TO CONTEST THAT, THAT EVIDENCE OF MENTAL RETARDATION? IF IT GOES BACK TO WHAT IS THERE LEFT TO DO, AS FAR AS, I MEAN SHOULDN'T THE STATE HAVE, SOMETHING TO CONTRADICT WHAT WAS BEING OFFERED?

LET ME ANSWER THAT IN TWO PARTS. FIRST, I WOULD LIKE TO POINT OUT THE FACT THAT THE STATE AT THAT POINT WAS ONLY LOOKING AT THIS AND THAT THE STATE ACTUALLY DID DO SOMETHING. I WANT TO ADDRESS THAT, TOO, BUT IN THIS CASE THE STATE HAD A MITIGATOR. THE FACT IS THAT, IF THE STATE CONTESTED THAT TOO HARD, THERE ARE CONSEQUENCES THAT GO ALONG WITH --

YOU COME COULD DO THAT IN THE FACE OF A CLAIM BY THE DEFENDANT THAT IT WAS MORE THAN A MITIGATOR, THAT OUR CLAIM IS AND THAT WE ARE PRESERVING, IS THAT IT WOULD BE UNCONSTITUTIONAL. DOESN'T THAT PUT A DIFFERENT GLOSS ON IT?

WELL, YOUR HONOR, DEFENDANTS ARE ALWAYS MAKING ARGUMENTS THAT THINGS ARE CONSTITUTIONAL, BUT THERE IS SOMETHING OUT THERE THAT HAS BEEN OUT THERE FOR TWELVE YEARS AGO, HENRY, IT WAS NOT UNREASONABLE TO SAY THAT WE ARE NOT GOING TO FIGHT THIS AS A CONSTITUTIONAL THING. WE GOING TO FIGHT THIS --

WE HEAR ARGUMENTS FROM DEFENDANTS ALL THE TIME THAT CLAIM WE SHOULDN'T HAVE TO PRESERVE THIS AS AN ISSUE, BECAUSE THE LAW IS THIS WAY, AND THE STATE COMES BACK AND SAYS OX KNOW, YOU STILL -- OX NO, YOU STILL HAVE -- O NO, YOU STILL HAVE TO PRESERVE THAT ISSUE, SO YOU DO HAVE TO MAKE THOSE ARGUMENTS, SO WHY SHOULDN'T THE STATE BE BOUND BY THE SAME CONSIDERATIONS?

TWO THINGS. FIRST STATE WAS ARGUING THE NO DEATH PENALTY DUE TO MENTAL RETARDATION. THE STATE DOES ARGUE THAT AND THE STATE, IN THE PENALTY PHASE, DOES PUT ON CROSS-EXAMINATION, AND THEY ARE ALLOWED TO HAVE TWO EXPERTS IN THE CASE, BUT ACTUALLY THERE IS ONLY ONE EXPECT IN -- EXPERT IN THE CASE, BECAUSE OF THE STATUTORY SCHEME. AND YOU HAVE A PROBLEM HERE THAT THEY DON'T PUT ON SOCIAL SKILLS ADAPTIVE BEHAVIOR EVIDENCE, BUT AS THE ADAPTIVE BEHAVIOR EVIDENCE THAT IS PUT ON, THE STATE CROSS-EXAMINATIONS HIM, DOCTOR, YOU KNOW, ISN'T IT A FACT THAT YOU HAVE FOUND THAT THIS PARTICULAR DEFENDANT, THE STATE --

THE STATE, AFTER DOING THAT, THE TRIAL COURT THEN FOUND THAT HE WAS MENTALLY REFARDED.

BUT ONLY AS -- RETARDED.

BUT ONLY AS A NONSTATUTORY MENTAL MITIGATOR.

I REALIZE THAT, WITH OUR QUESTIONS, WE HAVE OVER THE TIME. THANK YOU VERY MUCH. MR. MARSHAL, HOW MUCH TIME LEFT ON REBUTTAL? SEVEN MINUTES. MR. DAVIS.

MR. DAVIS, FOLLOWING UP ON THAT LINE OF QUESTIONING, YOU WOULD AGREE THAT THE DETERMINATION BY THE TRIAL JUDGE HERE, NONSTATUTORY MITIGATION, WAS ON THE BASIS OF A PREPONDERANCE OF THE EVIDENCE, CORRECT?

I BELIEVE THAT, SO HE DIDN'T ARTICULATE, I DON'T RECALL HIM ARTICULATING.

THAT IS THE STANDARD.

I AM SORRY, YES, AS TO FINDING MITIGATION. THAT'S CORRECT.

RIGHT. AND SO DEPENDING, I GUESS, ON WHAT THE DETERMINATION HERE IS, ABOUT WHAT THE STANDARD SHOULD BE, BUT WHEN THE LEGISLATURE PASSED IT, THEIR STANDARD WAS DIFFERENT FOR MENTAL RETARDATION

CORRECT. CORRECT. THAT'S CORRECT.

CORRECT. AND WHAT HAPPENED, DO YOU KNOW WHAT HAPPENED IN VIRGINIA, AFTER THE SUPREME COURT, THEY DIDN'T ORDER THAT HE, THAT ATKINS COULD NOT BE EXECUTED. THEY ORDERED THAT IT BE SENT BACK FOR FURTHER PROCEEDINGS. ISN'T THAT RIGHT?

WELL, I AM NOT SURE.

THAT IS WHAT IT SAYS. DO YOU KNOW WHAT HAPPENED NEXT?

NO, I DON'T. LET ME, ONE OF THE MARVELS OF THE INTERNET IS YOU CAN GET THE AMICUS BRIEFS FROM THE U.S. SUPREME COURT, AND THEY TALK ABOUT, ONE OF THE THING THAT IS CAME UP WAS WHERE TO LEAVE THE STATES TO RESOLVE THESE THINGS, BECAUSE THE STATE'S AMICUS BRIEF IN THERE TALKS ABOUT HOW WIDELY DIVERS VERGE -- DIVERGENT OR AT LEAST THEY MAKE THE ARGUMENT THAT THE STANDARDS ARE WIDELY DIVERGENT. WE ARE GOING TO TO SAY IT BACK TO YOU. LET THE -- WE ARE GOING TO TOSS IT BACK TO YOU. LET THE STATES ARGUE IT AND THEN --

IF THE STATE'S ARGUMENT WAS CLEAR AND CONVINCING AND PREPONDERANCE, WASN'T THAT AN ARGUMENT FOR THE U.S. SUPREME COURT, THAT PREPONDERANCE WAS UNCONSTITUTIONALLY FIRM, TO AT LEAST MAKE SOME REFERENCE TO THAT?

I THINK THE U.S. SUPREME COURT WAS JUST DECIDING THE MENTAL RETARDATION ISSUE AND WAITING FOR ANOTHER DAY TO DECIDE WHAT THE APPROPRIATE STANDARD WAS.

HOW IS THAT GOING TO WORK OUT THOUGH? I AM HAVING A LITTLE BIT OF CONCERN, IN TERMS OF ARE WE TALKING ABOUT THAT, IN VIRGINIA, YOU CAN HAVE A PREPONDERANCE OF THE EVIDENCE STANDARD, AND IN TEXAS THAT, YOU CAN HAVE A YARD STANDARD, AND -- YOU CAN HAVE A, BEYOND A REASONABLE DOUBT STANDARD, AND --

LET ME UNDERSTAND BECAUSE ARE SAYING. IN MY SUPPLEMENTAL BRIEF, I DID SOME RESEARCH AND I CITED TO YOU WHAT MOST OF THE STATES HAVE DONE IN ATKINS. IF YOU LOOK AT MY BRIEF, I CITE 3 OR 4 CASES AND I WILL BE HONEST, I DON'T KNOW IF IT IS A STATE OR STATUTORY DECISION, BUT THE PREPONDERANCE OF THE EVIDENCE IS THE ONE THAT THEY ARE USING. CASES BEFORE ATKINS, WERE LESS UNIFORM. MOST OF THEM USES THE PREPONDERANCE BUT THERE WERE A FEW THAT USED CLEAR AND CONVINCING. ONLY GEORGIA USED BEYOND A REASONABLE DOUBT, SO IT IS A LITTLE BIT, BUT THE TREND, IF WE ARE LOOKING AT TRENDS, I THINK MOST STATES ARE GOING TO A PREPONDERANCE OF THE EVIDENCE BECAUSE OF THE COOPER --

ARE THERE ANY STATES THAT HAVE OVERRULED THE STATUTORY DETERMINATION OF CLEAR AND CONVINCING EVIDENCE?

I DON'T KNOW. I JUST PULLED OUT THE, I JUST, I DIDN'T GO ANY FARTHER THAN THAT. SO I DON'T KNOW. I AM SORRY.

COULD YOU ADDRESS THE ISSUE THAT THE STATE HAS PRESENTED, WITH REGARD TO THE TIMING AT WHICH THIS WILL OCCUR AND THE CONFIDENTIALITY ISSUES THAT MAY BE IMPINDICATED, IF YOUR -- IMPLICATED, IF YOUR VIEW IS SEND?

WELL, IN DILL BACK -- WELL, IN DILLBECK, YOU BASICALLY SAID IF THE DEFENDANT WAIVES THE ISSUES, THE STATE CAN COMPEL HIM TO TESTIFY, SO I DON'T REALLY SEE HOW, IN LIGHT OF DILBEYK AND ALL OF THOSE CASES THAT YOU CAN NOW SAY I HAVE GOT A PRIVILEGE THAT MAYBE A DEFENDANT CAN HIDE THE TESTIMONY, SO I DON'T REALLY SEE --

IS THAT A GOOD POLICY TO STRUCTURE IT IN THAT FASHION, RECOGNIZING A POLICY WILL BE FACEED?

I DID SOME RESEARCH ON THIS AND WHAT OTHER STATES ARE DOING, AND MOST EAR STATES ARE ADOPTING A PRETRIAL -- AND MOST OTHER STATES ARE ADOPT AGO PRETRIAL RESOLUTION OF THE ISSUE. IN FACT, FLORIDA IS UNIQUE IN WAITING UNTIL THE LAST POSSIBLE MINUTE TO DETERMINE THE RETARDED APPROACH.

I GUESS JUSTICE LEWIS, FOLLOW THE PROBLEM FOR THE DEFENDANT IS THAT THE DEFENDANT WOULD WANT TO TESTIFY IF THE JUDGE WANTS TO BE ABLE TO OBSERVE THE DEFENDANT'S DEMEANOR, IT SEEMS THAT WE ARE CUTTING IT OFF AT A POINT WHERE THEY ARE GOING TO BE DEPRIVED OF ALL OF THAT INFORMATION, TO DO IT PRETRIAL.

I AM NOT, I HAVE LOST YOU, BUT LIKE I SAY --

IN OTHER WORDS IF YOU ARE SAYING THEY WAIVED CONFIDENTIALITY, DOESN'T THAT, ISN'T THAT GOING TO BE HAVING A CHILLING EFFECT ON DEFENDANTS WHO WANT TO BE ABLE TO RAISE IT BUT DON'T WANT TO HAVE TO BE EXAMINED AT THAT STAGE, AND DON'T --

DEFENDANT, I AM SORRY. GO AHEAD. DEFENDANTS HAVE TO MAKE THOSE DECISION ALL THE TIME, AND I MEAN, THAT IS KIND OF WHAT DILBECK SAID, AND DILBECK SAID IF YOU WANT TO RAISE OTHER ISSUES THAN INSANITY, YOU CAN'T DO IT, BUT THERE ARE OTHER EXCEPTIONS, FETAL ALCOHOL SYNDROME. IF IT IS THAT STRONG AN ISSUE, YOU --

HOW IS IT EVEN AN ISSUE, UNTIL SOMEBODY IS CONVICTED OF FIRST-DEGREE MURDER?

IT BECOMES AN ISSUE WHEN HE IS CHARGED WITH FIRST-DEGREE MURDER AND THE DEATH SENTENCE IS POSSIBLE. AT THAT POINT, IN THE PRETRIAL PROCEEDINGS, WHEN THE DEFENDANT KNOWS, I MEAN THAT IS WHAT HAPPENS. I WHEN THE STATE CHARGES FIRST-DEGREE MURDER, I MEAN THE WHOLE, I THINK YOU WERE SUGGESTING, JUSTICE CANTERO WAS SUGGESTING THE WHOLE MIND CHANGES.

THE DEFENDANT IS NOT ELIGIBLE FOR THE DEATH PENALTY UNDER RING UNLESS ONE OR MORE FACTORS --

THEY CHARGE FIRST-DEGREE MURDER AND CHARGE IT UNDER 782.--

THAT IS GUILTY OF SECOND-DEGREE?

YEAH, THAT'S TRUE BUT YOU DON'T KNOW THAT, BUT, AGAIN, WHEN THE STATE HAS CHARGED FIRST-DEGREE, YOU HAVE TO ASSUME THEY ARE GOING FOR THE DEATH PENALTY.

THERE COMES A POINT BEFORE THE TRIAL WHERE THE STATE NOTIFIES THE DEFENDANT THAT THEY ARE SEEKING THE DEATH PENALTY. IS THAT CORRECT?

YES. AT LEAST AT THAT POINT, WHEN THEY SAY, YEAH, WE REALLY ARE SERIOUS ABOUT IT. THAT HAPPENS FAIRLY EARLY IN THE PROCEEDINGS.

CAN I CAN ONE QUESTION AND I HOPE YOU -- CAN I ASK ONE QUESTION, AND I HOPE YOU WILL BE BRIEF, THE CONSTITUTIONAL ISSUE WITH THE DEFENDANT, WAS IT CONSISTENT WITH ATKINS OR WITH THE LAWS THAT EXISTED AT THE TIME, BECAUSE I AM TRYING TO DETERMINE WHAT THE STATE WAS ON NOTICE THE CONSTITUTIONAL ARGUMENT WAS.

I DON'T RECALL. IT WAS, I THINK BECAUSE THEY KNEW CASES LIKE THOMPSON, WHICH YOU ARE REFERRING TO, THEY KNEW IT WAS A LOSING ARGUMENT BUT THEY WANTED TO RAISE IT, SIMPLY TO PRESERVE IT, THAT IT IS CRUEL AND UNUSUAL TO EXECUTE SOMEBODY WHO IS MENTALLY RETARDED. THERE WASN'T A LOT OF TIME SPENT ON IT BECAUSE IT WAS SIMPLY TO PRESERVE THE ISSUE, I HATE TO SAY, BUT --

WE ALL WHO TRIED THESE CASES KNOW WE GET THE WHOLE PLETHORA OF MOTIONS. RIGHT. AND THAT WAS THE CONTEXT IN THIS CASE? THERE IS NOT AN ANTICIPATION OF THE BROADER --

UNFORTUNATELY, NO. NO. ATKINS WASN'T OR McCARVER VERSUS NORTH CAROLINA WASN'T ON THE HORIZON AT THAT TIME.

WHAT WOULD BE THE DOWN SIDE OF HAVING THIS DETERMINATION MADE AFTER THE GUILT PHASE OF THE PROCEEDINGS? AS OPPOSED TO BEFORE THE GUILT PHASE?

IT GOES BACK TO WHAT JUSTICEANT CAN'T CAN'T SAYS -- JUSTICE CANTERO SAYS. YOU GET A JURY THAT IS DEATH-QUALIFIED, A AND WHILE ON A LEGAL BASIS IT MAY NOT -- AND WHILE ON A LEGAL BASIS, IT MAY NOT MAKE ANY DIFFERENCE, FOR THE PROSECUTOR, WHO IS DEATH-PRONE, ALSO FOR THE PROSECUTOR THEY CAN SAY LOOK, WE HAVE GOT THIS GUY CONVICTED AND HE WOULDN'T HAVE BEEN SENTENCED TO DEATH BUT FOR THE STATUTE, SO DON'T BLAME US IF HE GETS A LIFE SENTENCE. THOSE ARE TWO REASONS THAT YOU WOULD BE LAUGHED OUT OF COURT ABOUT THAT.

ISN'T THE PROCEEDING TO DETERMINE THE MENTAL RETARDATION IS BEFORE THE JUDGE ONLY, WOULDN'T THAT SOLVE THE PROBLEM? THAT YOU ARE FACED WITH.

I THINK PRETRIAL MOTION BEFORE THE JUDGE WOULD SOLVE THAT PROBLEM.

CHIEF JUSTICE: ALL RIGHT. UNFORTUNATELY OUR TIME HAS EXPIRED. WE THANK ALL OF YOU FOR BEING SO RESPONSIVE TO THE COURT'S INQUIRIES. THE COURT IS GOING TO TAKE A 15-MINUTE RECESS AT THIS TIME, BEFORE WE HEAR THE LAST TWO CASES ON THE DOCKET. WE WILL STAND IN RECESS.