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Roger Lee Cherry v. State of Florida
SC02-2023
>GOOD MORNING.
>>> LADIES AND GENTLEMEN,
THE FLORIDA SUPREME COURT.
>>> THE LAST CASE ON THE
CALENDAR THIS MORNING IS
CHERRY VERSUS STATE.
COUNSEL?
>> GOOD MORNING.
MAY IT PLEASE THE COURT,
LINDA McDER NOT ALONG WITH
McCLAIN ON BEHALF OF ROGER
CHERRY.
MR. CHERRY'S CASE IS PENING
WITH SEVERAL ISSUES THE MOST
RECEP ISSUE IS OBVIOUSLY THE
DETERMINATION OF WHETHER OR
NOT HE IS INELIGIBLE FOR A
DEATH SENTENCE DUE TO HIS
MENTAL RETARDATION, I THINK
THAT IS WHERE I WOULD LIKE
TO BEGIN TODAY.
>> BEFORE YOU -- WHAT ISSUES
ARE PENDING BEFORE THE
COURT?
IS IT ONLY THE MENTAL
RETARDATION ISSUE?
ARE THERE OTHERS?
IN OTHER WORDS, HELP US,
BECAUSE WE NEED TO BE SURE
WE ARE ALL ON THE SAME PAGE.
>> SURE, THE ISSUES THAT ARE
PENDING ARE BACK TO ANNUALLY
DISCOVERED EVIDENCE CLAIM
THAT WAS FILED WHILE HIS
CASE ON APPEAL TO THIS COURT
FOR THE FIRST, THE TRIAL OF
THE FIRST MOTION, THOSE
ISSUES HAVE NEVER BEEN RULED
UPON, THERE WERE, I BELIEVE,
TWO ISSUES IN THAT BRIEF,
ANNUALLY DISCOVERED EVIDENCE
CLAIM AND A CLAIM ABOUT THE,
THAT THERE WAS NO
EVIDENTIARY HEARING CONDUCT
ON SPECIFIC ISSUE REGARDING
SOME OF THE TESTING AND THE
DATA.
>> ARE YOU GOING TO ADDRESS
THOSE ISSUES?
>> ONLY IF THE COURT DESIRES
ME TO ADDRESS THOSE.
>> SO YOUR INTENTION IS TO
ADDRESS THE MORE RECENT
ISSUE, THE MENTAL
RETARDATION ISSUE AND THE
HEARING.
I THINK THAT WOULD CONSUME
THE MAJORITY OF THE TIME
UNLESS ANYONE HAS ANY
QUESTIONS ABOUT THE INITIAL
BRIEF THAT WAS SUBMITTED TO
THE COURT.
VIE A QUESTION, SORT OF AN
OVERVIEW QUESTION THAT WE
ARE DEALING WITH.
THE IT IS A VERY TROUBLING
CASE.
THAT WHICH IS THE EXPERTS
BOTH COMING TO THE
CONCLUSION OR HAVING THE
OPINIONS THAT WE HAVE A
RETARDATION SITUATION.
YET, WE HAVE SOME STANDARDS
ESTABLISHED BY, BY THE STATE
THAT CAME TO REGULATION
THROUGH THE LEGISLATURE,
CAME THROUGH THAT PROCESS,
AND IT ALMOST APPEARS, I
MEAN, IT SEEMS TO ME, AS WE
ARE LOOKING AT THIS, THAT
THE EXPERTS JUST SAY, YOU
CAN'T APPLY THE RIDGED
STANDARDS THE STATE HAS
ESTABLISHED.
IT SEEMS TO ME, THAT IS A
FAIR KIND OF OVERVIEW OF
WHERE WE ARE, BECAUSE IT
SEEMS AS THOUGH WE'RE
TALKING ABOUT A FIXED NUMBER
FOR THE IQ ELEMENT AND THEN
YET THE EXPERTS ARE SAYING
BOTH OF THEM SAYING THAT HE
IS MENTALLY RETARDED EVEN
THOUGH WE MAY HAVE NUMBERS
ABOVE THAT.
THIS NEEDS TO BE IN CONTEXT,
IT SEEM, NOT JUST THE
NUMBERS OF WHAT THE EXPERTS
PLAY, BUT THE INTERPLAY, 6
THESE TWO THINGS, HOW DOES
IT WORK?
>> THERE IS ISSUE IN TERMS
OF WHAT US THE DEF NATION OF
MENTAL RETARDATION IN THE
STATE OF FLORIDA AN I THINK
THAT THERE IS SOME CONFUSION
AS TO THAT, UM, THE
LEGISLATURE IN ADOPTING THE
STATUTE IDENTIFIED THE
CLINICAL DEFINITION OF
MENTAL RETARDATION AN IN
THEIR SENTENCE STAFF
ANALYSIS, THEY SPECIFICALLY
REFER TO THE IDEA THAT YOU
DID HAVE THIS PLUS OR MO US
IN 5 POINTS, UM, WHICH
ACCOUNT FORCE THE STANDARD
ERROR OF MEASURE THAT IS
IMPLICIT IN THE TESTING
INSTRUMENT ITSELF AND IT IS
ALSO RECOGNIZED BY EVERY
DYING DIAGNOSTIC MANUAL
ABOUT RETARDATION RECOGNIZED
BY THE APA AND THE DSM AND
SO ANYONE WHO, YOU KNOW,
ACCESSES MENTAL RETARDATION
IS CONSIDERING THAT, IN
ORDER TO HAVE RELIABILITY
RESULT, YOU HAVE TO CONSIDER
THAT ISSUE AND IT APPEARS
THE LEGISLATURE IN FACT DID
CONSIDER IT BECAUSE IT
SPECIFICALLY STATED IN THEIR
STAFF ANALYSIS, THEY DIDN'T
IDENTIFY A DISTINCT NUMBER
IN THEIR STATUTE, NOW, WHEN
THIS COURT ADOPTED 3203, IT
MIRRORS THE SENATE'S -- I
MEAN THE FLORIDA
LEGISLATURE'S STATUTE.
AGAIN, IT DOESN'T
SPECIFICALLY SAY THIS HAS TO
BE 70 OR BELOW OR 69 AND
BELOW.
AND I DO THINK IN LOOKING
BACK AT SOME OF THE CASE LAW
FROM THIS COURT IN RODRIGUEZ
WHICH WAS AGAIN CITED, THIS
COURT DIDN'TFIED THE DSM
DEFINITION OF RETARDATION
WHICH SPECIFICALLY SAYS
APPROXIMATELY 70 OR BELOW.
AND SO I DON'T THINK THAT
YOU HAVE IDENTIFIED A NUMBER,
I MAGIC NUMBER AS THE STATE
CALLS IT IN TERMS OF THE IQ
OF DETERMINING MENTAL
RETARDATION.
>> THE STATE AGENCY
DETERMINED THAT
>> HAS THE STATE?
>> THE STATE AGENCY WITH
REGARD TO THE IMPLEMENTATION
OF WHAT THE STANDARDS ARE?
WELL, THIS COURT, THE
LEGISLATURE DIRECTED THE
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES TO DETERMINE
WHAT TEST WOULD BE USED TO
ACCESS MENTAL RETARDATION.
THEY HAVE CHOSEN TWO TESTS
-- THOSE TESTS IMPLICIT IN
THOSE TEST, YOU HAVE TO
CONSIDER THE STANDARD OF
ERROR OF MEASURE, OTHERWISE,
YOU ARE NOT -- IT IS
UNRELIABLE, IT WOULD BE
INACCURATE RESULT TO SAY
THIS IS HIS IQ.
THIS IS HOW HE FUNCTIONS.
THAT IS THE ONLY, THAT IS
THE END OF THE STORY, AND
SO, WHEN YOU LOOK AT IT LIKE
THAT, THERE ARE CERTAINLY,
ALL OF THIS BACK GROUND
INFORMATION THAT SUGGESTS
THAT THERE IS NOT A NUMBER,
THERE SHOULDN'T BE A NUMBER,
BECAUSE WHAT WE KNOW FROM
DR. PRICHARD DR. BERNSON, IQ
IS SIM POLICE, IT IS A
GENERAL SORT OF WAY OF
DISCUSSING FUNCTIONING.
IT IS A STARTING POINT.
WHEN YOU HAVE IQ OF 72,
ACCORDING TO THESE EXPERTS,
THAT PLACES THIS INDIVIDUAL
IN A RANGE THAT WE NOW HAVE
TO, WE HAVE TO LOCK AT THIS
EVIDENCE FURTHER.
WE HAVE TO, YOU KNOW, JUST
LIKE IN RODRIGUEZ, WHEN YOU
SAID, HIS IQ WAS UNDER 70,
WE HAVE TO ON, THERE IS MORE
TO THE PICTURE.
>> THAT IS AN APAEMING
INTERPRETATION OF THE THING
BUT THE OTHER SIDE OF IT IS
THAT IT APPEARS THAT THE
LEGISLATURE HAS CHOSEN A
MORE RIDGED DEFINITION, ONE
MAY TALK ABOUT STANDARD
DEVIATION, SO ON THE GROUND,
AT LEAST, YOU KNOW, WHAT WE
ARE SEEING FOR EXAMPLE WOULD
BE THAT IF THE EXPERTS
CONCLUDED THAT ON AN
ACCEPTABLE STANDARD IQ TEST
THAT ALL OF THE SCORES WERE
75, THAT THE DEFENDANT WOULD
NOT QUALIFY UNDER THE
LEGISLATIVE DEFINITION SO
WOULD YOU ADDRESS THE
LEGISLATURE'S TREATMENT OF
THE STANDARD DEVIATIONS AND
HOW THAT DOES NOT IN EFFECT
PRODUCE A NUMBER, A NUMBER
AND SO, AS I SAY, WE CLEARLY
ARE BASED IN THIS PARTICULAR
CASE, APPARENTLY, WITH TWO
EXPERTS THAT SAY, LOOK, THIS
FELLOW IS MENTALLY RETARDED,
BUT NO, HE DOESN'T REALLY
MEET WHAT WE IN TERP FRIGHT
BE THE WAY THE LEGISLATURE
HAS DEFUNED THIS AND WE HAVE
TO BE CANDID ABOUT THAT.
SO THAT WE ARE BASED WITH
THIS ISSUE AS AS YOU HAVE
INDICATED BUT NOW I THINK
YOU NEED TO RESPOND TO THE
DATES, POSITION AND WHAT IS
HAPPENING ON THE GROUND THAT
IT APPEARS THAT THE
LEGISLATURE HAS CHOSEN
REALLY ALMOST IN ESSENCE THE
CAP, THAT IS, IF YOU ARE
OVER THE SCORE OF 7 ON
ACCEPTABLE STANDARDIZED
TEST, THEY HAVE DONE IT
THROUGH THIS VARIABLE OF THE
STANDARD DEVIATION.
SORRY.
WELL, I AGREE THAT IT IS A A
CONUNDRUM, BUT HELP ME WITH
WHAT IS THE FLAW IN THE
STATE'S INTERPRETATION OF
THE LEGISLATURE?
>> WELL, SURE, I THINK THE
FLAW GOES BACK TO THAT WHAT
WE HAVE IS WE HAVE A
DEFINITION OF TWO STANDARD
DEVIATIONS BELOW THE MEANS,
WHICH TAKES TO YOU A NUMBER,
BUT EVEN IN THAT DEFINITION
IN WHAT WE ARE LOOKING AT ON
THE TESTING INSTRUMENT,
THINGS LIKE, THAT YOU HAVE
TO CONSIDER THE STANDARD
ERROR OF MEASURE.
AND SO WHEN YOU LOOK AT SORT
OF THE GLOBAL WAY OF
DIAGNOSING MENTAL
RETARDATION, IT CAN NOT BE A
NUMBER, AND SO.
>> I AM HAVING SOME
DIFFICULTY WITH THAT BECAUSE
THE U.S. SUPREME COURT HAS
MORE OR LESS SAID YES WE ARE
GOING TO FIND THAT THE
MENTALLY RETARDED CAN NOT BE
EXECUTED, BUT WE'LL LEAVE IT
UP TO THE INDIVIDUAL STATE
TO SORT OUT THEIR OWN
STANDARDS FOR MENTAL
RETARDATION.
>> THAT IS TRUE, BUT THE
U.S. SUPREME COURT ALSO
TALKED ABOUT THE, THE WHOLE
SORT OF PURPOSE OF WHY WE
ARE EXEMPTING THIS CLASS OF
PEOPLE AND, UM, WHEN YOU
HAVE SOMEONE WHO HAS A 72 IQ
AND YET THEY ARE FUNCTIONING
AT A LEVEL OF MENTAL
RETAFERDATION, THEN THAT
PERSON SORT OF FALLING INTO
THE GROUP THAT THE SUPREME
COURT IS IDENTIFYING WHEN
THEY ARE SAYING THESE PEOPLE,
THEY DON'T HAVE THE MORAL
CULPABILITY THAT WE THINK OF
ADULT OFFENDERS TO COMMIT
MURDERS, IT SIMPLY DOESN'T
RESPOND TO THE PHILOSOPHICAL
CONCERNS ABOUT THE URPS OF
PUNISHMENT.
>> IF INSTEAD OF THE TWO
STANDARD DEFATION, THE
LEGISLATURE HAD SAID ON AN
ACCEPTABLE TEST AND NAME THE
TEST AND THEN SAID A SCORE
OF 70 OR BELOW?
>> WHAT WOULD BE
IMPLICATIONS OF THAT?
>> PARDON?
>> WHAT WOULD BE THE
IMPLICATION OF THAT?
>> RIGHT.
WHERE WOULD YOU BE IF THAT
IS WHAT THE LEGISLATURE HAD
DONE?
WELL, I MEAN, ONE PLACE WE
WOULD BE, WE WOULDN'T HAVE
THIS UNCERTAINTY, AND THE IN
TERMS OF JUST SCIENTIFICALLY,
IF YOU ARE LOOKING AT THE IN
PERSPECTIVE OF PSYCHOLOGY,
THESE AREAS IN SORT OF THESE
MENTAL HEALTH PROFESSIONALS,
THEY HAVE TO CONSIDER THESE
TYPES OF ISSUES IN PRODUCING
A RELIABILITY RESULT.
>> WITHIN THE LEDGE SLAY
TIREIVE PREROGATIVE OF
SAYING 70 OR BELOW ON THIS
CERTAIN TEST?
>> IT MAY, IT CERTAINLY MAY
BE WITHIN THEIR PREROGATIVE,
BUT THEN, THAT AGAIN BRINGS
US BACK TO IS THIS
PARTICULAR DEATH SENTENCE,
IS THIS PARTICULAR
INDIVIDUAL THE TYPE OF
INDIVIDUAL THAT IT WOULD BE
UNCONSTITUTIONAL TO EXECUTE
BECAUSE OF HIS FUNCTIONING
AND SO I THINK THAT THERE IS
STILL, THERE IS STILL AN
ISSUE THERE -- IT WOULD BE
AS APPLIED CHALLENGE, THAT
IS WHAT YOU ARE TALKING
ABOUT?
>> CERTAINLY THINK THAT THAT
IS THERE AND I MEAN, I MEAN,
THERE ARE, THERE ARE STATES
WHO HAVE SET AN ACTUAL
NUMBER AND THEN THERE ARE,
YOU KNOW, AND SOME OF THOSE
NUMBERS ARE HIGHER THAN 70
AND SOME OF THOSE NUMBERS
ARE 70.
>> WHY ISN'T THE LEDGE SLAY
LEGISLATION THAT WE HAVE
HERE IN FLORIDA 70 OR BAE
LOW?
>> I DON'T THINK THAT IS THE
LEGISLATION, BECAUSE I THINK
IF YOU LOOK AT EVERYTHING,
THEY DIDN'T IDENTIFY A
NUMBER AND WHEN YOU LOOK AT
THE OTHER STATES WHO HAVE
IDENTIFIED A NUMBER, THEY
ARE IDENTIFYING A NUMBER.
THIS IS SIMPLY MIRRORING A
DEFINITION FROM A THAT SAYS
YOU HAVE TO CONSIDER
STANDARD ERROR OF MEASURE.
YOU HAVE TO CONSIDER
CONFIDENCE.
>> THERE'S SEVERAL
QUESTIONS.
>> AS I UNDERSTAND YOUR
ARGUMENT TODAY, CORRECT ME
IF I AM WRONG, I WANT TO
UNDERSTAND YOUR ARGUMENT, WE
CANNOT RELY ON ANY SPECIFIC
NUMBER, SO EVEN 76?
>> WELL, NO, THAT IS NOT
WHAT I AM SAYING.
WHAT I AM SAYING IS IN
CONDUCTING THESE TYPE OF
EHAVE VALUEATION, YOU HAVE
ALL SORTS OF STATISTICAL
ISSUES THAT ACCOMPANY THE
EVALUATION, YOU WANT TO HAVE
CONFIDENCE IN THE NUMBER
THAT YOU ARE GETTING AND
WHAT THAT MEANS IN TEMPS OF
THE FUNCTIONING.
>> I UNDERSTAND THAT, SO IF
WE HAD IQ OF 76, COULD THEN
THE COURT SAY, WELL, HE IS
NOT MENTALLY RETARDED FOR
SURE?
>> I, I DON'T KNOW.
I MEAN.
I DON'T KNOW.
>> LET ME GO BACK TO THE
QUESTION.
YOU CAN'T RELY ON ANY
NUMBER.
IT SEEMS THAT IF THAT IS
YOUR ARGUMENT, YOU CAN'T
RELY ON ANY NUMBER?
WHAT YOU ARE SAYING IS LET'S
JUST DISREGARD THE TWO
STANDARD DEVIATION PART OF
THE TEST, LET'S RELY ONLY ON
THE OTHER TWO WHICH ON THE
18th DEFICITS AN AN ACTIVE
FUNCTIONING, IF YOU HAVE IQ
OF 89, BUT CAN'T FUNCTION
AND THE EXPERTS SAY, WELL,
HE HAS DEFICIT, HE CAN'T DO
THIS FOR HIMSELF, HE CAN'T
DO THAT, THIS WAS ONSET
BEFORE 18, THEN, WE SHOULD
FIND MENTAL RETARDATION
REGARDLESS OF WHAT THE IQ
WAS?
THAT SEEMS TO BE TOTALLY
CONTLAR TROY WHAT THE
LEGISLATURE INTENDED, IT
SEEMS TO ME, THE MOST WE CAN
GO UNDER YOUR ARGUMENT IS TO
IQ OF 75 BECAUSE YOU ARE
SAYING THERE IS STANDARD
DEVIATION OF 5 POINTS,
THEREFORE, NOT STANDARD OF
ERROR OF 5 POINTS,
THEREFORE, TWO STANDARD
DEVIATIONS IS NOT REALLY 70
IN ORDER TO BE ACCURATE, IT
HAS GOT TO BE 75, I CAN
UNDERSTAND THAT ARGUMENT,
BUT TO SAY THAT ANY NUMBER
IS NOT RELIABLE IS TO SAY WE
HAVE TO DISREGARD ONE PRONG
OF THE TEST?
>> WHAT I THINK THE POINT OF
IT IS WHAT DR. PRICH CHARRED
TOLD THE LOWER COURT, THAT
THE 72 IN MR. CHERRY'S CASE
PART OF A BIGGER PICTURE,
YOU CAN'T JUST SAY, BECAUSE
YOU HAVE 72, HE IS NOT
RETARDED.
THERE IS MORE.
>>.
[LOW AUDIO]
>> AS FOR STANDARD OF ERROR,
SO EVEN IF WE STANDARD
DEVIATION TO 70, IT IS STILL
UNDERSTANDS AND TAKES INTO
ACCOUNT THE SCIENCE OF
MENTAL RETARDATION AND
ANALYSIS WHATEVER YOU CALL
THAT I SAYS THAT WE HAVE GOT,
THE STATISTICAL ANALYSIS
REQUIRES THAT ADDITIONAL
STEP, BUT I AGREE WITH --
BUT IF YOU ARE TRYING TO SAY
THAT IT WOULD BE, IT COULD
BE 80, BUT STILL THINK HE IS
MENTALLY RETARDED.
>> I AM NOT TRYING TO SAY
THAT.
>> WHAT I AM SAYING IS THAT
THERE IS -- FOR EXAMPLE, IN
THE CASE, WHAT WE KNOW, AND
THIS IS A NUMBER THAT PLACES
HIM IN THE RANGE OF MENTAL
RETARDATION, WHAT WE KNOW
ABOUT MR. CHERRY IN TERMS OF
FUNCTIONING, AS A CHILD, HIS
GIFT GRADE TEACHER SAID HE
WOULD HAVE BEEN MENTALLY
RETARDED CLASS BECAUSE OF
HIS FUNCTIONING.
WHEN THEY DID EVENTUALLY
HAVING START HAVING MENTALLY
REGARDED STUDENTS IN THEIR
OWN CLASSROOM, MR. WILLIAM,
HIS MIDDLE SCHOOL TEACHER
SAYS HE WAS IN THAT CLASS,
WAS IN THAT CLASS BECAUSE OF
THE MENTAL FUNCTIONING, THAT
STATEMENT WAS MADE PRIOR TO
MR. CHERRY EVER BEING
CHARGED WITH THIS CRIME OR,
UM, US GOING OUT LOOKING FOR
SKILLS CAN ISSUE.
>> WHAT EVIDENCE WAS THERE
IN THIS CASE IN THE LIGHT
MOST FAVORABLE TO THE STATE,
PLEASE, AS TO PRESENT
ADOPTIVE FUNCTIONING SKILLS?
>> WELL, THIS IS -- I THINK
WHAT YOU ARE ASKING ME IS,
AT THE HEARING, WE HAVE TWO
EXPERTS TESTIFYING THAT HE
IS RETARDED AND THAT HIS
ADAPTIVE SKILLS FALL INTO
THE RANGE OF HIM BEING
RETARDED.
THERE WERE --
>> EXPERT FOR THE STATE
TESTIFIES SUCH?
>> YES.
YEAH.
THAT IS WHAT PRITCHARD WAS
PICKED BY THE STATE.
THIS COURT IS WELL AWARE.
HE HAS BEEN INVOLVED IN MANY
OF THESE RETARDATION CASE,
TO MY
NOW, IN TERMS OF THE $$COURT'S
ORDER AND POINTING TO
SOMETHING THAT SHE THINKS
ARE INCONSISTENT AGAIN THIS
IS A BIT TROUBLE CAUTION SHE
HAD TWO EXPERTS BEFORE HER
WHO ASSESSED THE EVERY DAY
WHO ACTUALLY CONDUCTED THE
EVALUATIONS TO MET MR. $$
MR. CHERRY TALKED TO PEOPLE
ON THE PHONE, AND THEY FOUND
THE AE ADAPTIVE SKILLS TO BE
-- A PROBLEM, BUT IN TELL US
OF THE ORDER TALKS A LITTLE
BIT ABOUT ANTISOCIAL
PERSONALITY DISORDER DOCTORS
PRITCHARD AND BURSTYN
CONSIDERED THAT ONE THING
THEY BOTH SAID UNDER DSM
WHEN LOOKING AT RESOLUTION,
AND MENTAL -- RETARD
ADDITIONAL SUBSTANCE ABUSE
THINGS LIKE THAT YOU HAVE TO
RULE THOSE OUT BEFORE
DIAGNOSING ANTISOCIAL
PERSONALITY DISORDER IN THIS
CASE AND THEY ARE NOT MUTUAL$$
MUTUALLY EXCLUSIVE, SO, IN
THIS CASE, THEY CONSIDERED
THAT.
AND THEY STILL CAME TO THE
CONCLUSION, THAT HIS ADAPT$$
ADAPTIVE SKILLS PROBLEMS ARE
BECAUSE OF HIS MENTAL RETARD
ADDITIONAL BECAUSE OF THE
WAY THAT HE -- RETARDATION
THE WAY HE IS FUNCTIONING
GENERALS IS LOW, AND THINGS
LIKE THAT, I THINK, SOME OFF
THE OTHER THINGS THAT THE
COURT POINTED.
>> I THINK HIS QUESTION WAS
TAKING THE EVIDENCE IN LIGHT
MOST FIVE RAL TO THE STATE
THE THEY ALSO CITED THAT IN
THEIR BRIEF IN TERMGS OF
ANTI-SOCIAL PERSONALITY
DISORDER ISSUE THROUGH CAN
DEPRESS ADAPTIVE FUNCTIONING
I THINK ANOTHER THING THAT
HAS BEEN CITED TO IS THERE
IS SOME MR. CHERRY'S
DESCRIPTION OF SO MUCH HIS
WORK HISTORY THERE ARE
THINGS THAT THE COURT AND
THE STATE CITE AS BEING SORT
OF INCONSISTENT WITH IDEA
THAT HE -- HIS ADAPTIVE
SKILLS ARE BELOW THE LEVELS
THAT THEY SHOULD BE, BUT,
DOCTORS PRITCHARD AND
BURSTYN CONSIDERED THAT ONE
THING THAT MR. NOT ONLY --
NUNNALLY DID AT HEARING THEY
WOULD SAY TELL ME HE WORKED
FOR HE WAS FRUIT PICKER,
AND, WORKED IN A MIGRANT OUT
FROM CAMP AND THEN THERE WAS
ALL THIS SPECULATION ABOUT
WOULDN'T THAT BE AROUND
WOULDN'T HE BE AROUND
MACHINERY BUT THERE IS NO
EVIDENCE THAT HE WAS, AND
NEVER SAID HE WAS.
AND SO THAT HAS FILTERED
ILLUSTRATION WAY INTO THE
FACILITY$$IED INTO ORDER FAS
EVIDENCE WHEN WASN'T
PRESENTED THERE WAS EVIDENCE
THAT COURT CITES THE STATE
RELIES ON IN TERMS OF YOU
KNOW THAT HE USES CANTINE IN
THE PRISON THAT HE USES THE
GRIEVANCE PROCEDURE, AGAIN
THESE ARE THINGS THAT THE
DOCTORS CONSIDERED AND DR.
PRITCHARD SAID, QUITE
FRANKLY THOSE ARE NOT THINGS
THAT REQUIRE A HIGH LEVEL OF
INTELLIGENCE, AND SO THAT IS
WHY IN HIS OPINION THEY WERE
NOT THINGS THAT MADE THEY
MAY SEEM UNUSUAL, BUT THEY
WERE NOT THINGS THAT WOULD
CHANGE HIS OPINION AS TO THE
OVERALL CONCLUSION THAT
MR. CHERRY IS RETARDED.
>> OWE NEED TO WATCH YOUR
TIME.
>> I JUST WANT IT SEEMS TO
ME LOOK AT THE TRIAL $$JUDGE'S
ORDER WHICH IS VERY
EXTENSIVE THAT THE TRIAL
JUDGE FINDS THAT A NUMBER OF
FACTORS$$
FACTORS, THAT SHE FINDS, TO
BE INCONSISTENT WITH MENTAL
RETAR ADDITIONAL, RETARD$$
RETARDATION SUCH AS WHAT HE
HAS WHAT THE RECORDS SHOW
ABOUT HIM USING INMATE
GRIEVANCE PROCEDURES, THE
CANTEEN PROCEDURES SHE GOES
ON TO THE CIRCUMSTANCES OF
THE CRIME, AND SAYS THAT
THEY ARE MORE SOPHISTICATED
THAN THOSE EXPECTED OF A
MENTALLY RETARDEDPERSON.
ARE WE TO ARE YOU SAYING,
THAT THOSE FINDINGS ARE NOT
ENTITLED TO DEFERENCE?
>> WELL, I CERTAINLY THINK
WHEN YOU HAVE TWO EXPERTS
SAYING, I CONSIDERED THAT,
AND THAT WAS THE POINT OF
THEIR EVALUATION, AND ONE OF
THEM WAS HANDPICKED BY THE
STATE.
AND HE SAYS I CONSIDERED,
THAT AND I STILL FIND THIS
GUY TO BE RETARDED, THEN, I
THINK THAT THAT IS THE
COMPETENT SUBSTANTIAL
EVIDENCE WE SHOULD BE
LOOKING TO, WHAT IS THE
POINT OF HAVING EXPERTS IF
THE JUDGE CAN SIMPLY LOOK
THROUGH THE RECORDS AND PULL
OUT SOME THINGS THAT DON'T
SEEM TO BE CONSISTENT, IN
TERMS OF THE DEFINITION, AND
THEN MAKE THAT THE RULING.
THAT DOESN'T MAKE ANY SENSE.
THESE ARE THE EXPERTS WHO
CONSIDERED THIS AND THEY
ALSO CONSIDERED ALL OF THE
EVERY DAY -- EVIDENCE DR.
PRITCHARD SAID SPECIFICALLY
TO ADAMENTIVE FUNCTIONING
EVERYTHING HE REVIEW WAS
ALMOST EXCLUSIVELY SUPPORT$$
SUPPORTING THE IDEA THAT
MR. CHERRY WAS FUNCTIONING
BELOW THE LEVEL THAT HE
SHOULD BE, FUNCTIONING AT.
I KNOW I HAVE LUCED A LOT OF
THE MY TIME I WOULD LIKE TO
RESERVE THE REST FOR
REBUTTAL$$
REBUTTAL.
>> MR. NUNNALLY.
>> MAY IT PLEASE THE COURT
PERHAPS I CAN SIMPLIFY SOME
OF THE ISSUES BEFORE THE
COURT.
WE HAVE MULTIPLE
INTELLIGENCE TESTS OF THIS
INMATE.
WE HAVE $$IQ'S RANGING I WROTE
THEM DOWN BECAUSE I CAN'T
RECOMMEND THEM THERE ARE TOO
MANY NUMBERS.
FROM 85, 86, ON THE BETA 2
BEST -- WE HAVE, TWO --
>> -- THOSE DATA TESTS THOSE
AREN'T THE ONES RECOGNIZED
BY THE STATE OF FLORIDA.
>> THEY ARE NOT RECOGNIZED
BY THE STATE OF -- STATUTE
OF THE RULE FOR PURPOSES OF
THE MEMORY RETARDATION
EVALUATION$$
EVALUATION.
>> IN 92 EVALUATE HE HAD HAD
THE SAME THE 72 ON THE --
>> 72, 9 -- 96 HE HAD A 78
ON THE TEST, THEN, 2005, ON
THE 3 WE CHEMICAL BACK A 72
LET'S FOCUS ON THOSE THREE
SCORES.
WE HAVE HEARD THE TALK ABOUT
THE STANDARD ERROR OF
MEASURE, NOW THE STANDARD
ERROR OF MEASURE IS THIS --
5 THAT WE ARE THAT WE'VE
BEEN HEARING ABOUT, AND HAS
BEEN AN ISSUE BEFORE THIS
COURT REPEATED CASES, THAT
NUMBER, THAT PLUS OR MINUS 5
IS REALLY MORE ACCURATELY
DISCUSSED AND THIS IS
BROUGHT OUT IN THE RECORD,
OVER REFERRED TO IN TERMS OF
A CONFIDENCE INTVALUE.
AND WHAT THAT MEANS, IF
ANYBODY REMEMBERS STATE OFS
I CERTAINLY DON'T I NEVER
TOOK IT.
-- THAT MEANS, YOU HAVE IN
THIS CONTEXT A 95%
CONFIDENCE LEVEL, THAT IN
THE CASE OF THE # 8 IQ -- 78
IQ WE CAN SAY WITH 95%
SERENITY THAT MR. CHERRY'S
IQ FALLS BETWEEN 73 AND 83.
WITH RESPECT TO THE 7 # 2
FULL SCALE IFLTQ'S, WE CAN
SAY, WITH 95% SERENITY, THAT
MR. KERREY'S IQ FALLS
BETWEEN 67 AND 77.
NOW, WHEN YOU OVERLAY THOSE
THREE TESTS, TWO OF BROI
DEWSED THE SAME NUMBER AND
ONE OF WHICH PRODUCED A HOT
-- HIGHER NUMBER AND
CONSIDER ALONG WITH THAT THE
UP DISPUTED NOTION THAT YOU
CANNOT FAKE GOOD OR FAKE
SMART ON IQ TEST, YOU HAVE
THIS OVERLAPPING CONFIDENCE
INTERVAL THAT PUTS MR. $$
MR. CHERRY'S I.SQ SOMEWHERE
BETWEEN 73 AND 77.
WHICH IS OUTSIDE THE RANGE
OF MENTAL RETARDATION AND IS
ABSOLUTELY DISPOSITIVE OF
THIS ISSUE.
>> -- DOES -- 1996 TEST YOU
ARE SAYING WOULD PUT HIM --
SLIGHTLY OUTSIDE.
>> 1996 TEST ON IT'S OWN,
STANDING ALONE, PUTS HIM
OUTSIDE THE RANGE OF MENTAL
RETARD$$
RETARDATION.
>> THEN WHO MAKES THIS IS --
I DON'T THINK WHEN THE
SUPREME COURT THOUGHT THAT
THEY WOULD -- WERE, LEAVING
IT TO THE STATES TO COME UP
WITH THEIR OWN DEFINITIONS
THE QUESTION THAT THEY IT
WAS GOING GET DOWN TO THIS
TYPE OF ISSUE ABOUT, 99, 96
TEST VERSUS 2006 TEST, DOES
THE JUDGE THEN -- WHAT DID
THE EXPERTS SAY TO EXPLAIN
AGAIN INCLUDING THE EXPERTS
THAT WAS STATE REQUESTED,
ABOUT THE 1996 IQ TEST?
WHAT WAS THE EXPLANATION FOR
THE HIGH TEST AND THEN WHAT
DOES WHERE ARE THE FINDINGS,
HOW WE ARE SUPPOSED TO LOOK
AT AND REEVALUATE THOSE
TESTS IF WE ARE?
>> THE DEFENSE EXPERT, DR.
BARSTON$$
BARSTON -- FOUND NO REASON
IN THE TRIAL COURT FOUND
THIS IN HER ORDER BELIEVE IN
A FOOTNOTE TOWARD THE BACK,
THAT THERE WAS NO REASON TO
DISCOUNT THE 78 IQ SCORE
OBTAINED BY DR. CROWD IN THE
96 TESTING, DR. PRITCHARD.
>> WHY THE STATE DIDN'T CALL
DR. CROWN THEN?
IT SEEMS TO ME AGAIN THIS IS
TRULY LIFE AND DEATH MATTER.
WE WANT TO MAKE SURE WE HAVE
GOOD INFORMATION -- WHEN
JUSTICE LEWIS TALKS ABOUT
SOMETIMES THAT TALKE TALK
THIS LOOKS LIKE A --
SOMEBODY WHO THROUGHOUT HIS
LIFE, WAS AT LEAST AND I
KNOW OF YOU DIFFERENT VIEWS,
BUT CERTAINLY THIS IS NOT
LIKE A NEWFOUND MENTAL
RETARD$$
RETARDATION, THIS IS
SOMEBODY THAT WAS
FUNCTIONING AT A PRETTY LOW
LEVEL SO MY QUESTION IS, IF
DR. $$CROWN'S TEST IS GOING TO
BE THE CRITICAL TEST NOW,
AND WE SHOULD BE LOOKING AT
THAT TEST, RATHER THAN THE
TEST THAT WE ARE PERFORMED
IN 2005, WHY WOULDN'T WE
WANT TO HAVE HEARD FROM DR.
CROWN THROUGH THE STATE
PUTTING THAT EVIDENCE ON IS
THE ALREADY TESTIFIED.
>> I HAVE NO REASON TO CALL
HIM AGAIN, I HAVE HIS
TESTIMONY IS IN THE RECORD,
IT US.
>> DITIONLY NOTICE BIRD THE
COURT.
THERE IS NO REASON AND NO
JUSTIFICATION$$
JUSTIFICATION, FOR CLOUDING
THE RECORD WITH A THIRD OR
FOURTH OR A FIFTH EXPERT,
THAT GIVES US THIS THICKET
OF NUMBERS ACRONYMS WHEN
I'VE GOT THAT IS ALREADY OUT
THERE THIS COURT ALREADY
FOUND THAT.
ALREADY TALKED ABOUT IT.
>> WHY DID YOU NEED YOUR OWN
EXPERT AT ALL?
YOU ASKED DPROR PRITCHARD
DIDN'T YOU.
>> IF YOU.
>> -- THE EXPERTS WERE
APPOINTED PURSUANT TO RULE
3203.
WHICH REQUIRES THE APPOINT$$
APPOINTMENT TWO OF EXPERTS,
ONE SUGGESTED BY THE STATE,
WHICH I SUGGESTED DR. --
>> WHY WOULDN'T YOU SAY WE
DON'T NEED TO GO THROUGH
THIS, DR. CROWN IS ALREADY
GIVEN HIS OPINION AND IT IS
THEIR EXPERT WAS 78?
>> WELL, JUSTICE PARENTE I
DON'T MEAN TO GIVE 234RI7ANT
ANSWERS THIS COURT ORDERED
IT FOR EVIDENTIARY HEARING
I'M NOT GOING TO ARGUE WITH
WERE A THIS COURT'S REMAPPED
ORDER WAS.
>> FROM DR. POLITIC $$
CHARRED'S REPORT THE $$STATE'S
EXPERT ON PAGE 7 GOING ON TO
PAGE 8 IT SAYS IT IS
IMPORTANT TO NOTE THAT AN
OBTAINED IQ SCORE IS NOT
ABSOLUTELY THAT IS AN
OBTAINED IQ SCORE IS
ACTUALLY AN APPROXIMATE TO
REPRESENT THAT SCORE IN
VALID MANNER PROFESSIONALS
MUST BUILD A CONFERENCE
INTERVAL HAY ROUND THE
OBTAINED SCORE, AND STATE
THAT WITHIN THIS CONFIDENCE
INTERVAL PERSONS TRUE IQ
ACTUALLY FALLS.
MOST PROFESSIONALS USE A 95%
CONFIDENCE INTERVAL.
GIVEN DR. BARN$$ARD'S OBTAINED
RESULTS # # APPROXIMATE
CONFIDENCE INTERVAL WOULD BE
BETWEEN 67 AND 77.
THEN IT SAYS HENCE
MR. STATEMENT THAT A 72 DOES
NOT REPRESENT RETARDATION IS
NOT NECESSARILY TRUE.
AND OBTAINED SCORE OF 72 CAN
ACTUALLY REPRESENT A TRUE IQ
SCORE OF BELOW 70.
QUALIFYING FOR A DIG I KNOWS
OF RETARDATION, LATER IN HIS
REPORT, HE SAYS, THAT GIVEN
THESE RESULTS WOULD IT BE MY
OPINION THAT MR. ROGER
CHERRY LIKELY DOES MEET THE
STATUTORY CRITERIA FOR A
DIAGNOSIS OF MENTAL RETARD$$
RETARDATION CLASSIFIED IN
THE MAILED RANGE MILD RANGE
HE SAID HE DOES EXHIBIT
DEFICITS IN ADAPTIVE
BEHAVIOR.
SO DON'T -- DON'T THESE
CONCLUSIONS BUT THERES
MR. McDERMOTT$$'S ARGUMENT
THAT YOU CAN'T JUST RELY ON
A SCORE OF 70 THAT THERE IS
A BUILT IN STANDARD OF
ERROR?
>> THE STANDARD ERROR OF
MEASURE OR THE COMPETENCE
INTERVAL WE ARE USING THE
MATERIALS INTERCHANGEABLY.
-- TERMS EE IS SOMETHING
THAT WAS EXPLORED IN SOME
DEPTH AT THE EVIDENTIARY
HEARING, AND DR. BARSTON LET
ME BACK UP, BR BARSTON THE
SECOND PAGE OF THE
EVIDENTIARY HEARING
TRANSCRIPT SAYS MENTAL
RETARDATION REQUIRES IQ
BELOW 75, THAT IS NOT WITH
THE DM-- DSM OR ANY ON THE
DEFINITION SAYS DR. BARSTON
BUM -- PUMPED -- BUMPED IT 5
POINTS THAT I WOULD SUGGEST
IS INDICATIVE OF HIS -- VENT
WITH REGARD TO THE CASE.
>> -- HE MAY BE RIGHT FOR
THE WRONG REASONS IT MAY BE
THAT IT IS IQ OF 70 BUT
BECAUSE OF BUILT-IN STANDARD
ERROR 5 POINTS YOU ACTUALLY
MEASURE FROM # 5.
>> THAT IS WHERE HE -- 7 #
5.
>> THAT IS WHAT HE
ULTIMATELY SAID IT COULD
REPRESENT A SCORE BASED ON
THE COMPETENCE INTERVAL UP
TO 7 # 5.
BUT HE DIDN'T DO THAT UNTIL
PRESSED ON CROSS-EXAMINATION$$
CROSS-EXAMINATION.
THAT IS REALLY KIND OF
BESIDE THE POINT.
BUT WHAT WE HAVE.
>> IS YOUR ARGUMENT THE 78,
AND WAS IT THE ARGUMENT MADE
AT THIS HEARING IS THAT IT
WENT FROM 72, 78, 82 -- THAT
72s REPRESENT A PERIOD OF
TIME THAT HE WAS MORE
DEPRESSED WHATEVER, THAT
THERE IS AN EXPLANATION FOR
THAT THOSE SIX POINTS, NOT
BASED ON DEVIATIONS OR
STANDARD ERROR OF MEASURE,
BUT BECAUSE OF OTHER THINGS,
THAT MIGHT HAVE BEEN
AFFECTING MR. CHERRY AT THE
TIME THAT HE TOOK HIS TEST,
AND IN 2005, OR 2002?
1245 IS THAT THE EXPLANATION
FOR IT.
>> THAT IS CERTAINLY ONE OF
THE POSSIBLE EXPLANATIONS
FOR THE 72 SCORE OBTAINED ON
THE MOST RECENT TESTING IS
THAT MR. CHERRY SUFFERS FROM
HIGH BLOOD PRESSURE TAKES
MEDICATION FOR IT.
THAT HE HAS BEEN DEPRESSED
THAT HE IS SUFFERING FROM A
LACK OF SLEEP.
TESTIMONY WAS CLEAR THAT ALL
OF THOSE THREE THAT THOSE
FACTORS$$
FACTORS, CAN DEPRESS THE
TESTED IQ SCORE.
>> WE ARE CLEAR HE WAS NOT
YOU KNOW FAKING BAD SCORES
THIS IS NOT SOMEBODY THAT
WAS MALL INNINGERING, THAT
WAS -- CONCLUSIONS --
CORRECT.
>> BOTH OF THEM CONCLUDED
THAT HE WAS NOT MALINGERING.
>> I WANTED TO ASK THAT I
DIDN'T HAVE A CHANCE TO
MR. MISS McDERMOTT THIS WHEN
WE LOOK AT THESE CASES, I
TEND TO WANT TO LOOK AND SEE
WHAT WAS PRESENTED AT TRIAL
THE ORANGE -- ORIGINAL TRIAL
AS TO MENTAL MITIGATION,
MENTAL RETARDATION, READING
THE OPINION, DOES NOT EVEN
THERE IS NO MENTION OF ANY
MITIGATION$$
MITIGATION, AT ALL.
WHAT WAS THE ORIGINAL TRIAL
TESTIMONY ABOUT MR. CHERRY,
IS BACKGROUND, HIS MENTAL
FUNCTIONING$$
FUNCTIONING, WAS THERE
ATTEMPT TO ESTABLISH MENTAL
RETARD$$
RETARDATION?
WOULD YOU HELP ME WITH THAT?
>> MY RECOLLECTION OF THE
RECORD IS ALL OF THAT CAME
OUT IN POSTCONVICTION
PROCEEDINGS THERE HAVE BEEN
SEVERAL.
>> THAT THERE WAS NOTHING --
AT THE ORIGINAL TRIAL.
>> I DO NOT BELIEVE THERE
WAS JUSTICE --
>> YOU HAVE NOBODY LOOKED
BACK TO TRY TO EITHER
IMPEACH WHATEVER TO SAY
WELL, THIS IS A JOHNNY COME
LATELY CLAIM, OF MENTAL
RETARDATION.
>> IT WAS JOHNNY-COME-LATELY
CLAIM WITH RESPECT TO A
CLAIM THAT WAS RAISED IN THE
POST CONVICTION PROCEEDINGS
NOT SOMETHING THAT WAS
LITTED GATED AT TRIAL.
>> THIS --
>> POPPED UP --
>> DEFENDANT -- CHILDHOOD AT
TRIAL?
THAT WAS PRESENTED --
>> IF THERE WAS IT WAS VERY
MINIMAL.
THERE WAS NOTHING THAT WAS
-- NOT -- NONE OF THE TRIAL
RECORD NONE OF THE TRIAL PEN
PHASE THIS HAS BEEN AN ISSUE
THAT I THINK I HAVE MAYBE
TWICE UP HERE ALREADY WAS
THAT CAME UP IN THE CONTEXT
OF INEFFECTIVENESS OF
COUNSEL, AT THE TRIAL PHASE,
AND MY MEMORY IS OR MY
RECOLLECTION IS THAT THERE
WAS NOTHING IN THE 3E7B89
PHASE THAT -- PENALTY PHASE
PERTINENT TO MENTAL RETARD$$
RETARDICATION QUESTION THE
RETARDATION ISSUE SEEMS IS
TO HAVE POPPED UP IN 1992.
>> DID THE AT THE
EVIDENTIARY HEARING, AFTER
WE REMANDED IT BACK FOR
EVIDENTIARY HEARING IN
POSTCONVICTION, THAT IS WHEN
THE TESTIMONY CAME IN.
>> YES YOUR HONOR.
>> MENTAL RETARDATION.
>> THAT IS WHERE THE CLAIM
POPPED THAT UP IS WHERE THE
CLAIM THAT HE WAS MENTALLY
RETARDED WAS REJECTED BY THE
TRIAL COURT --
>> THAT IS WHERE THE PRIOR
TESTIMONY WAS?
YES, SIR.
>> THE 92 TEST WAS BY DR.
BRARD FISHER, DR. $$CROWN'S
TEST WAS IN 96, DR. BURSTON
DID THE TESTING IN 2005, I
GUESS, IT WAS.
>> IT WAS CROWN THAT WE
REFERRED TO IN OUR OPINION.
THAT CAME OUT IN 2001.
>> YES, SIR I DON'T BELIEVE
DR. FISHER FIGURED
PARTICULARLY PROM FENTLY IN
THAT.
IF I COULD TURN TO THE --
>> LET ME ASK YOU THIS,
MR. NUNNALLY IF THE COURT
SHOULD$$
ACCEPT THE ARGUMENT THAT THE
SYSTEM IIS WHAT EXPERTS SAY
IS APPLIED -- SIM, IS
APPLIED STANDARD ERROR --
AND THERE IS A 10-POINT
RANGE HOW WOULD YOU SEE THAT
BEING APPLIED?
HERE WE GOT A 72 # THAT HAS
BEEN TESTIFIED ABOUT.
SO THE RANGE WOULD BE 67, TO
77.
>> THAT IS CORRECT.
>> SO HOW WOULD THAT WORK?
TWO-PART ANSWER, JUSTICE
WELLS, THE DEPARTMENT OF
CHILDREN AND FAMILIES I'M
SORRY THE AGENCY FOR PERSONS
WITH DISABILITIES, REQUIRES
AN ABSOLUTE CUTOFF SCORE OF
70.
THERE WAS TESTIMONY TO THIS
TOO ABOUT THAT AT THE
EVIDENTIARY HEARING.
THERE IS NO DOUBT AND I DO
NOT DISPUTE THAT
PSYCHOLOGISTS SPEAK IN TERMS
OF THIS RANGE OF SCORES.
HOWEVER$$
HOWEVER, IT IS ALSO CLEAR
THAT THE LEGISLATURE KNEW
THAT WHEN THEY ADOPTED THE
STATUTE, BECAUSE IT WAS IN
THE STAFF ANALYSIS.
THE LEGISLATION AND THIS $$
COURT'S RULE IS WRITTEN IN
TERMS OF DEFINING THE
INTELLECTUAL UP IF SHUNG
COMPONENT OF MENTAL --
MENTAL RETARDATION AS A
SCORE ON A SPECIFIED ONE OR
TWO SPECIFIED IQ TESTS, THAT
FALLSTO FOLLOWS TWO OR MORE
STANDARD DEVIATIONS BELOW
THE MEAN, I WOULD SUGGEST
THAT THE LANGUAGE OR THE USE
OF THE FWRIEZ STANDARD
DEVIATIONS IS A WAY I'M
TRYING TO THINK HOW TO PUT
THIS.
WITH -- LET ME PUT IT THIS
WAY, IF WE WERE TALKING
ABOUT THE -- WAY 3, STANDARD
DEVATION ON THE WAYS 3 IS
15.
THAT IS ONE STANDARD
DEVIATION TWO STANDARD
DEVIATIONS IS 30 EVEN I CAN
FIGURE OUT THAT 100 MINUS 30
IS 70.
THE COURT OR RATHER
LEGISLATURE COULD HAVE SAID
70 OR BELOW AND THAT WOULD
HAVE BEEN RIGHT.
FOR THE WAYS 3, BUT WITH THE
WAYS 4 COMES OUT.
THE STANDARD DEVATION ON THE
WAYS 4 MAY BE 16.
JUST LIKE IT IS ON THE
STANFORD BENET, 16 ON
STANFORD BENET NOT 15, THAT
MEANS 68 IS TWO STANDARD
DEVATIONS BELOW THE MEAN ON
THE TEST THAT IS ALSO
ACCEPTABLE FOR USE IN THIS
CONTEXT.
AND I WOULD SUGGEST, THAT
THE USE OF THE PHRASEOLOGY
THAT PPZ TECHNICAL IN --
APPEARS TECHNICAL IN NATURE
IS IN FACT BEING THE BEST
WAY TO DO IT BECAUSE WHEN
THE TESTS GET RESTANDARDIZED$$
RESTANDARDIZED, WE DON'T
HAVE TO GO BACK TO COURT OR
RATHER BACK TO THE
LEGISLATURE, AND CHANGE IT
BECAUSE STANDARD DEVIATION
IS CHANGED.
BUT IN BUT GOING -- PERHAPS
BACK TO YOUR QUESTION,
JUSTICE -- JUSTICE WELLS I'M
AFRAID I DIDN'T DO REALLY
GOOD JOB ANSWERING IT.
-- THE PLUS OR MINUS 5 THAT
WE ARE TALKING ABOUT IS PART
OF WHAT THE PSYCHOLOGICAL
PROFESSION USES.
DR. PRITCHARD RECOGNIZED
THAT THERE IS DIVERGENCE
BETWEEN THE DEFINITION
APPLIED BY PROCTOLOGISTS AND
THE DEFINITION THAT IS
APPLIED IN THE LEGAL CONTEXT
SPEAKING DIRECTLY TO THE
AGENCY FOR PERSONS WITH
DISABILITIES$$
DISABILITIES, BUT LET ME --
MAKE A COUPLE OF OTHER
POINTS, ABOUT THIS.
IT IS NOT JUST AS SIMPLE AS
US MR. OR-5.
BECAUSE WHAT YOU HAVE, TAKE
DEFENDANT WITH IQ 75, FULL
SCALE IQ ON THE WAYS 3 THAT
CAN BE IQ OF 70 OR IQ 80
SOMEWHERE IN THAT 10 POINT
BAND IF WE BUY INTO PLUS OR
MINUS FIVE NOTION, WHAT THE
ARGUMENT CAN BE, AFTER THAT
WE ASSUME, IN THIS CONTEXT,
THAT RATHER THAN BEING 5
POINTS ADDED TO THAT 75
MAKES IT 80 WE AUTOMATICALLY
ASSUME OR AT LEAST THE
DEFENSE IS AUTOMATICALLY
ASSUMING THAT YOU SUBTRACT
THAT 5 POINTS RIGHT OUT OF
THE CHUTE.
THAT GETS HIM DOWN TO 70.
AND THEN THE ARGUMENT THAT$$
THATTURE GOING TO SEE IS
THAT WE HAVE TO THEN HAVE TO
CONSIDER WHAT IS CALLED THE
FILM EFFECT.
-- FLIMEFFECT A PHENOMENON
DEVELOPED SLIGHTLY IN THIS
CASE DID NOT GET REALLY
FLESHED OUT THAT MUCH
BECAUSE --
>> MY ARGUMENT -- NOT MY
ARGUMENT, MY QUESTION REALLY
GOES TO HOW IS THE
DETERMINATION TO BE A MADE
WHETHER YOU ADD 5, OR YOU
SUBTRACT 5?
>> YOU CAN'T MAKE IT.
THE DEFENDANT, TAKES THE
POSITION AND DR. BURSTON
TOOK THE POSITION YOU
AUTOMATICALLY SUBTRACT B 5.
>> IS NOT THE ANSWER THAT
THAT IS WHY THE LEGISLATURE
HAS THE SECOND PRONG WHICH
IS DIE EFFICIENCY ADAPTIVE
BEHAVIOR BECAUSE AFTER --
DEEFFICIENCY AFTER YOU GET
THE NUMBER I'M READING FROM
YOUR EXPERTS REPORT DR.
PRITCHARD THAT WHEN SOMEBODY
IS AT 72, WHICH OFTEN DOES
EQUATE TO A SCORE CONSISTENT
WITH MENTALLY RETARDATION,
IT BECOMES IMPERATIVE, WITH
THE SCORE ON THE CUSP
BETWEEN MENTAL RETARDATION
AND BORDERLINE THAT THE
PROFESSIONAL CONDUCT ADAPT
TO BEHAVIOR TESTING, AND HE
DID THIS, WITH MR. CHERRY
AND THEN HE GOES ON, AS TO
WHY HE FOUND WHAT WAS DONE
AND THEN HIS OWN TESTING
WITH THE PRISON, GUARD,
OFFICER TO BE PARTICULARLY,
COMPELLING$$
COMPELLING, AND SO, I GUESS,
THE QUESTION I HAVE THE
REASON WE DON'T JUST TAKE
THE NUMBER AND SAY IF
SOMEBODY WAS 68, THAT THAT
IS GOING TO BE THE END OF
THE QUESTION, THE INQUIRY,
THAT IS THAT THEY ARE
MENTALLY RETARDED THE
LEGISLATURE HAS DIRECTED US
THAT BEYOND THE NUMBER WE
MUST HAVE TWO OTHER THINGS
ESTABLISHED$$
ESTABLISHED.
DEFICITS IN ADAPTIVE
BEHAVIOR, AND ONSET BEFORE
18.
>> THAT IS CORRECT
PROFESSIONAL DEFINITION THAT
WAS FOLLOWEDED INTO THE
STATUTE AND THAT IS BECAUSE
BEING MENTALLY RETARDED
MEANS MORE THAN SCORING A
LOW ON IQ TEST.
AND WITH RESPECT TO THE --
CONDUCT GRID PRITCHARD -- I
WOULD -- REMIND THE COURT
THAT THAT TESTING PRODUCED
AN AGE EQUIVALENT WHICH IS
HOW THE -- REPORTS BACK 9.9
YEARS THAT IS JUST FLATLY
WAY, WAY TOO LOW FOR THIS
MAN'S DEMONSTRATED PROVEN
ESTABLISHED HISTORY IN
GETTING BY THE WORLD.
>> LET ME ASK YOU ANOTHER
QUESTION ON THIS IQ THING.
AS OFTEN HAPPENS AND
HAPPENED IN THIS CASE THERE
ARE SEVERAL IQ TESTS.
SO WHAT HAPPENS IF DEFENDANT
SCORES DURING HIS LIFETIME
AN 86, 80, 76,AND A 70?
WHICH -- AND 70?
WHICH DO YOU TAKE IN
DETERMINE WHETHERING THAT IS
IQ SCORE WE ARE GOING TO USE
OR DO YOU AVERAGE THEM OUT
LIKE WE DO S.A.T. SCORES SO
IF PRESUMPTIVELY, AND AGAIN
THIS GOES BACK TO THE ONE OF
THE OPENING COMMENTS THAT I
MADE, BECAUSE ONE CANNOT
FAKE SMART, THEN ASSUMING
THAT ALL OF THOSE TESTS YOUR
HYPOTHETICAL ARE PROPERLY
ADMINISTERED CORRECTLY
SCORED, THE HIGH SCORE WOULD
BE THE ONE THAT IS THE MOST
ACCURATE INDICATION OF THE $$
DEFENDANT'S TRUE LOVE OF THE
INDIVIDUAL'S TRY LEVEL OF
MENTAL FUNCTIONING.
>> MY PROBLEM IS THAT IS WHY
WHEN YOU HAD YOUR EXPERT
YOUR EXPERT DISCOUNTED THE
-- BEAT AND KEN SCORE SAID
IQ NOT CONSIDERED STANDARD
PROFESSIONALLY ACCEPTED IQ
MEASURES YOU THREW THAT OUT
HE THEN TALKS ABOUT WHAT'S
WHAT DR.DRAWN -- CROWN DID
BUT THERE IS NOT AT LEAST IN
THE REPORT NOT IN --
TESTIMONY HE SEEMED TO
DISCOUNT AND WENT BACK TO
DR. $$BERNARD'S TESTING IN
1992.
AND THEN AGAIN, IN 2005.
AND SO I AND THAT THERE
COULD BE I THERED COULD BE
ON THE TIMES YOU MIGHT SAY
WE ARE GOING TO AVERAGE TAKE
THE HIGHEST ONE BUT IT
SEEMS, THAT -- THE DR.
PRITCHARD REALLY INTHAURTS
DR. BERNARD FOUND IN HERE
UNDERSTAND AND THOSE ARE
EXPERTS$$
EXPERTS, THAT WE OUGHT TO HE
BE RELYING ON.
>> DR. PRITCHARD DID NOT
PROVIDE A COGENT
EXPLANATION, FOR NOT CREDIT$$
CREDITING DR. $$CROWN'S FULL
SCALE IQ OF 78.
HE SAID THINGS ABOUT WELL I
HAVEN'T SEEN THE RESULTS, I
KNOW MY LIGHT IS BLINKING
COULD I COULD HAVE
INDULGENCE$$
INDULGENCE.
>> WE ARE LET HUG TIME TO
EXBLAIP PLEASE DO.
>> HE SAID I DON'T HAVE THE
TEST.
OKAY, YOU DON'T HAVE THE
TEST THIS IS A PROFESSIONAL
HE IS KNOWN TO EVERYBODY IN
THE COURT SYSTEM BECAUSE HE
HAS BEEN AROUND A MILLION
YEARS I CAN'T, THERE IS NO,
WE DON'T JUST AUTOMATICALLY
ASSUME IN INVALIDITY WE
DON'T MAKE AUTOMATIC
ASSUMPTIONS$$
ASSUMPTIONS, THAT ALWAYS
DEFAULT TO THE DEFENDANT.
JUST LIKE WE DON'T SUBTRACT
5 AUTOMATICALLY, WE DON'T
AUTOMATICALLY ASSUME THAT
THERE IS SOME DEFICIT OR
DEFICIENCY WITH THE IQ SCORE
A 78 --
>> YOU WERE IN POSITION
IMPEACHING YOUR EXPERT AT
LEAST WITH THESE TWO 72
SCORES, HAVING US UNDERSTAND
WHAT IT WAS ABOUT DR. $$
CROWN'S TEST THAT WOULD BE
THE ONE THAT WE OUGHT TO
CONSIDER AS BEING THE
APPROPRIATE ONE TO CREDIT.
>> WELL -- YOU ALREADY
CREDITED IT ONE TIME I WOULD
SUGGEST THAT THIS COURT
ACCEPTANCE OF THE 78 SCORE
FROM DR. CROWN BACK IN ONE
OF THE PRIOR OPINIONS, IS
GOOD ENOUGH FOR THOSE
PURPOSES, AND YOU KNOW I
DIDN'T CALL DR. PRITCHARD AS
A WITNESS THE DEF DRAULD
PRITCHARD I GOT TO
CROSS-EXAMINE HIM BUT IN
CONCLUSION I'M TRYING TO
WRAP UP, JUSTICE LIEIS.
>> WE WANT TO BE SURE WE HAD
A LOT OF THE QUESTIONS I
WANT TO BE SURE YOU HAVE THE
OPPORTUNITY I'M GOING TO
BEGIN THE OTHER SIDE
OPPORTUNITY TO EXPLORE THIS
FULLY GET YOUR ARGUMENT
WITHOUT -- OUT I DON'T WANT
YOU TO WALK AWAY SAYING I
DIDN'T GET MY ARGUMENT OUT.
>> JUSTICE LIEIS YOU KNOW
I'M NOT GOING TO DO THAT.
>> BUT --.
WHAT I WOULD SUGGEST, WE
HAVE HERE, IS A CLOSE CASE I
WILL CONCEDE THAT IT IS
CLOSE ON THE SCORES, WHEN
YOU REVIEW THE TRIAL $$COURT'S
ORDER, THAT EXPLAINS THE
HISTORY OF THIS MAN, AND
SETS OUT WHAT MR. CHERRY HAS
DONE, IN HIS LIFE, WHEN HE
WENT IN JAIL, AND IN FACT --
WHEN HE WAS IN PRISON WHERE
WE HAVE DOCUMENTED RECORDS,
WE HAVE A MAN THAT READS AT
10th GRADE LEVEL FOR EXAMPLE$$
EXAMPLE,ALL THIS IS IN THE $$
STATE'S BRIEF I DON'T NEED
TO READ THE BRIEF TO YOUALL
BECAUSE Y'ALL HAVE ALREADY
READ IT BUT WHAT I WOULD
SUGGEST WE HAVE GOING ON
HERE, IS ANALOGOUS TO A
DETERMINATION BY THE TRIAL
COURT OF WHEN OR NOT
DEFENDANT IS COMPETENT TO
STAND TRIAL IF I COULD BACK
OH, TO MY OWN CASE JAMES
EUGENE HUNTER CASE WHERE
THIS COURT EXPLICITLY SAID
THAT THE OPINIONS OF THE
EXPERTS ARE ADVISORY AND THE
COURT RETAINS THE FINAL
WORD, ON WHEN OR NOT THE
DEFENDANT IS COMPETENT TO
STAND TRIAL.
AND I WOULD SUGGEST THAT THE
RULE SHOULD BE NO DIFFERENT
IN THE CONTEXT OF A 2KER78$$
2KER78ATION OF MENTAL
RETARD, I GUESS, ADDITIONAL,
BECAUSE OTHERWISE WE GET TWO
EXPERTS WHATEVER THEY COME
IN AND SAY, THEN, YOU
KNOW,FINE WHATEVER IT IS
THEY SAY HE IS NOT MENTALLY
RETARD GOOD TO TRIAL THAT IS
END OF IT THEY SAY HE IS
MENTALLY RETARDED NOT
ELIGIBLE FOR DEATH AND THAT
IS THE END OF IT.
THAT IS NO THE THE WAY THE
SYSTEM WORKS THAT IS NOT THE
WAY THE SYSTEM SHOULD WORK.
WE ARE A SYSTEM ABOUT
ADVERSARIAL TESTING THAT IS
WHAT WE HAD IN THIS CASE I
HAD TO EXPERTS, THAT SAID
THIS MAN WAS MENTALLY RETARD$$
RETARDED.
THE TRIAL COURT, AFTER
HEARING BOTH OF THOSE
EXPERTS TESTIFY, FOUND AFTER
CONSIDERING ALL FACTS AND
CIRCUMSTANCES AND THE
TESTIMONY -- OF THESE TWO
EXPERTS$$
EXPERTS, MR. CHERRY IS NOT$$
NOTMENTLY RECARD OWED RETARD
I WOULDED SUGGEST THE TRIAL
COURTED TO BE AFFIRMED.
>> THANK YOU.
>> THANK YOU VERY MUCH.
>> PLEASE GIVE OPPOSING KUNS
THE TIME TO BE ADDED ON SO
EQUAL TIME.
>> OKAY.
>> THANK YOU JIFZ LEWIS.
A COUPLE THINGS IN RESPONSE
TO -- THE $$STATE'S ARGUMENT.
>> CAN YOU EXPLAIN DR.
CROWN?
I THINK THAT DR. KOUN WAS
YOUR EXPERT.
>> HE WAS EXPERT HE IS
PSYCHOLOGIST TESTIFIED AT 9
# HEARING ABOUT BRAIN DAMAGE
IN THE COURSE OF DOING HIS
NEUROYOU SEE KWLOJ CAL
EXAMINATION DID CONDUCT SOME
IQ TESTING AND OBTAINED A
FULL SCALE SCORE OF 78.
WHAT DOCTORS PRITCHARD AND
BURSTON TALKED ABOUT IN
TERMS OF THAT NUMBER WAS
FIRST OF ALL, DR. PRITCHARD
EXPLAINED THIS PRETTY
COMPREHENSIVELY HE SAID
NUMBER ONE I DON'T HAVE THE
SUBSCALES FOR THAT, SCORING.
>> WHY NOT.
>> I I MEAN WHY WASN'T THAT
AVAILABLE?$$
AVAILABLE?.
>> THIS IS -- AGAIN, LIFE
AND DEATH SITUATION WHY
DIDN'T YOU MAKE THAT
AVAILABLE TO DR. PRITCHARD.
>> IT I I MEAN I DON'T -- IT
WASN'T IN THE RECORD.
FROM THE PREVIOUS PREVIOUS
HEARING.
>> YOU DIDN'T HAVE THOSE.
>> HE DIDN'T HAVE -- ONE
THING I WANT TO POINT BUT
THE -- WHAT BURSTON TALKED
ABOUT IN HIS TESTIMONY,
ROGER $$CHERRY'S IQ IS
ACTUALLY INFLATED SLIGHTLY
BECAUSE OF THE SUBSCALES --
IF YOU LOOK AT HIS REPORT HE
IS SPECIFICALLY TALKS ABOUT
HOW HE DID FAIRLY WELL ON
THE DIGIT SPAN -- TEST AND
THAT ISN'T A SUBTEST THAT
TAPS INTO WHAT WE THINK OF
AS INTELLECTUAL FUNCTIONING
SO IN DR. BUR $$STANN'S
OPINION SUBSCALES DR.
PRITCHARD WOULD AGREE THE
SUBSCALES DO HAVE SOME
IMPACT IN TERMS OF THE
OVERALL IQ AND HOW THIS HOW
AN INDIVIDUAL IS FUNCTIONING$$
FUNCTIONING, BUT THE SECOND
THING DR. PRITCHARD TALKED
ABOUT WAS WHAT IS CALLED THE
-- FLINEFFECT THE YEAR THAT
MR. CHERRY WAS AD MINISTERED
THAT IT WAS THE LAST YEAR OF
THE TEST, AND WHAT THE
RESEARCH IS SHOWING NOW IS
THAT AS A TEST, GETS OLDER,
AND THEY GENERALLY LAST
ABOUT 15 YEARS, YOU SEE IQ
SCORES INCREASE, BUT THAT
DOESN'T MEAN EE --
>> NO.
NO NO.
THAT IS FINE THAT IS FINE
COUNSEL.
>> BUT THAT DOESN'T MEAN
THAT -- A PERSON WHO IS
TAKING THE TEST IN THE THAT
YEAR HIS IQ IS ACTUALLY
HIGHER THAN SOMEONE WHO TOOK
IT YOU KNOW SEVERAL YEARS
BEFORE, AND GOT SOMEWHAT
LOWER IQ.
SO THERE IS --
>> -- PHENOMENON.
>> I THINK JUSTICE ANSTEAD$$'S
ORIGINAL QUESTION TO YOU OUT
OF THE BOX THE BEGINNING OF
THIS ARGUMENT WHICH IS
REGARDLESS WHAT YOU ARE
ARGUING AS THE STANDARD OF
ERROR ALL THAT, THE
LEGISLATURE HAS DETERMINED
THAT THE IQ SCORE IS TWO
STANDARD DEVIATIONS BELOW
THE MEAN, WHICH WOULD BE 70.
AND THE U.S. SUPREME COURT
HAS SAID THAT STATES ARE
FREE TO DEFINE MENTAL RETARD$$
RETARDATION HOWEVER THEY
WISH.
GIVEN THOSE TWO THINGS,
WOULDN'T WE BE ESSENTIALLY
REWRITING THE STATUTE FOR
THE LEGISLATURE, IF WE SAID
THAT THE STANDARD IS NOT 70,
BUT IT IS REALLY 75, BECAUSE
OF THE STANDARD OF ERROR?
>> WELL, AGAIN, I MAY BE
MISSING HAVING A DISCONNECT
HERE BUT I THINK THE STATUTE
TWICE STANDARD DEVIATIONS I
THINK IMPLICIT IN THAT IS
WHEN THEY ARE MIRRORING
DEFINITION OF THE DSM THE
DSM SAYS YOU HAVE TO
CONSIDER STANDARD ERROR OF
MEASURE IN ORDER TO HAVE A
RELIABLE RESULT, WOULD YOU
HAVE 20 CONSIDER THAT.
>> THE PROBLEM IS THAT WE
COULD WE COULD GO THE OTHER
WAY AND SAY WELL IT IS NOT
REALLY 70 IT IS 65, BECAUSE
STANDARD DEVIATION COULD BE
BELOW 2.
SO, IN ORDER NOT TO DO THAT
WHY SHOULDN'T WE JUST SAY
WELL IT IS NOT 65 IT IS NOT
75 IT IS 70?
BECAUSE WHAT WOULD KEEP US
FROM GOING TO 56 WHY WOULD
WE INSTINCTIVELY SAY 75,
RATHER THAN 65?
>>.
>> WELL I THINK WHAT THE
EXPERTS WERE TRYING TO
EXPLAIN IS THAT IN ORDER TO
HAVE CONFIDENCE, IN ORDER TO
BE ABLE TO EXPRESS AN
OPINION, A RELIABLE OPINION,
YOU HAVE TO HAVE YOU HAVE TO
UNDERSTAND THE STATISTICAL
WAY THAT THE TEST WORKS AND
YOU HAVE TO CONSIDER THESE,
OF CONFIDENCE, STANDARD
ERROR OF MEASURE, SO I THINK
THAT THAT IS JUST PART OF
DOING I I MEAN BOTH OF THEM
SAID THIS IS PART OF DOING A
RELIABLE EVALUATION IS YOU
COULDN'T DO THE EVALUATION
YOU COULDN'T USE THESE
TESTING INSTRUMENTS, IF YOU
WEREN'T ALLOWED TO CONSIDER
THAT.
>> SO IF THE DEFENDANT HAS
SCORED 86 IN THE PAST, AND
HE SCORED 72, WOULDN'T
SOMEBODY SAY WELL WE SHOULD
PROBABLY ERROR SHOULD BE
GOING UP, NOT DOWN?
ON THE 72?
.
>> I MEAN I CERTAIN THINK
YOU HAVE TO BE WITHIN A
RANGE, I DON'T DISAGREE WITH
YOU THAT I THINK THERE IS A
POINT WHERE YOU ARE GETTING
WAY OUTSIDE, I I MEAN IF YOU
ARE AT 76, THERE -- THERE IS
YOU ARE GOING TO HAVE TO
REALLY SHOW SOMETHING MORE
AND EXPLAIN SOMETHING ABOUT
WHAT HAPPENED WITH THAT
TEST.
IN ORDER TO BE MEET ANY KIND
OF CRITERIA THAT THIS COURT
IS LOOKING AT.
BUT --
>> ASK THE SAME QUESTION I
ASKED MR. NUNNALLY WHICH
WHAT IS DO YOU DO WHEN YOU
HAVE SEVERAL IQ SCORES OVER
A LIFETIME, DO YOU AVERAGE
THEM OUT DO YOU TAKE A
HIGHEST I DO TAKE THE
LOWEST.
>> WITH THESE -- DID.
>> IN A HEARING?
>> WELL, WHAT WE HAVE IN
THIS -- THIS CASE, IS THERE
ARE SEVERAL IQ SCORES AND
THE FIRST THING IS WHAT KIND
OF IQ SCORES WHAT KIND OF
TESTS PRO, DEWS RELIABLE
RESULTS, AND BOTH DOCTORS
PRITCHARD AND BURSTON SAID
BETAS AND -- AREN'T RELIED
IN SIGN STIFFIC COMMUNITY
SHOULDN'T BE CONSIDERED WHEN
LACKING ALTHOUGH IQ WHEN OF
YOU WAYS AND --
>> DR. CROWN, EXCUSE ME.
>> I UNDERSTAND THAT, THIS
CASE, BUT GENERALLY, WE HAVE
A LOT OF THE CASES WHERE
THERE HAVE BEEN IQ SCORES
OVER A LIFETIME, AND THEY
VARY.
SO WHAT DOES A TRIAL COURT
DO WITH VARYING IQ SCORES?
>> I THINK THAT ONE THING A
COURT DOES IS THEY HAVE TO
LOOK AT THE OTHER EVIDENCE
FOR EXAMPLE IN THIS CASE WE
HAVE VERY COMPELLINGED OVER
HEAD OF THE BELIEVE $$CHERRY'S
INTELLECTAL FUNCTIONING WAS
BELOW MUCH BELOW AVERAGE IN
INTO THE RETARDATION RANGE
AS A CHILD, WE HAVE HIS
INDICATORS TELLING US THAT,
TELLING -- EDUCATORS TELLING
THUS WAS A KID WOULD HAVE
BEEN IN MENTAL RETARDATION
CLASSES HAD WE HAD THEM HE
WAS WHEN THEY WERE ACTUALLY.
HE IS THE IQ SCORES VARY
OVER A LIFETIME LET'S JUST
DISREGARD THE IQ SCORES
ALTOGETHER AND GO RIGHT TO
ADAPTIVE FUNCTIONING?
>> WELL, I THINK THAT AT
SOME POINT THE VARIANCE -- I
DON'T I'M NOT TRYING TO
DISAGREE WITH YOU BECAUSE I
THINK AT SOME POINT WHEN YOU
HAVE A SUBSTANTIAL VARIANCE,
YOU HAVE TO SAY, THAT THERE
IS SOMETHING GOING ON.
HERE, AND THAT THIS PERSON
CANNOT I I MEAN -- MEET
CRITERIA SO IF ONE LAST
QUESTION.
>> AT THE EVIDENTIARY
HEARING IN 3.850 THAT LED TO
OUR 2000 OPINION, DR. CROWN
DID TESTIFY.
>> CORRECT.
>> YES, HE DID.
>> AND THE TRIAL COURT FOUND
FROM HIS TESTIMONY THAT
MR. THAT DR. CROWN -- FOUND
THAT CHERRY HAD BORDERLINE
RETARD$$
RETARDATION.
THAT WAS AN ACCEPTED
FINDING; CORRECT?
>> YES.
>> THANK YOU VERY MUCH, WITH
OUR HELP OF YOU NOT ONLY
USED YOUR TIME BUT EXTRA
TIME WE THANK YOU BOTH
COUNSEL IN THIS CASE, FOR
YOUR VERY EXCELLENT
PRESENTATION$$
PRESENTATION.
WE WILL TAKE THE CASE UNDER
ADVISE$$
ADVISEMENT.
>> COURT WILL STAND IF
RECESS UNTIL MONDAY MORNING
AT # CLOK.
>> PLEASE RISE.,,,,,,,,,,,,,,,,