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Victor Tony Jones v. State of Florida
SC04-726
THE NEXT CASE ON THE DOCKET
IS JONES VERSUS STATE OF
FLORIDA.
>> GOOD MORNING CHIEF
JUSTICE LEWIS AND MEMBERS OF
THE COURT.
I'M WILLIAM HENNIS AND MY
ASSOCIATE AT COUNSEL TABLE
IS CRIS TIN ASPUDAISI
SPOET -- BOTH OF THE OF
HERE AND JONES THE
APPELLANT.
I WOULD LIKE TO JUST NOTE TO
THE COURT IN ADVANCE THAT I
DID WATCH THE CHERRY
ARGUMENT ON FRIDAY AND I'M
HAPPY TO ADDRESS ANY
OVERLAPPING ISSUE YOU MIGHT
HAVE RELATED TO THAT
ARGUMENT.
I WOULD LIKE TO POINT OUT
RIGHT UP FRONT THAT ONE
SIGNIFICANT DIFFERENCE IN
THIS CASE AND THAT CASE ASK
THAT WE DO HAVE TWO IQ
STORES THAT ARE 70 ARE -- OR
BELOW UNLIKE MR. CHERRY'S
CASE.
>> ARE THERE ANY ISSUE IN
THE CASE BESIDE THE MENTAL
RETARDATION?
>> DON'T BELIEVE YOUR HONOR
THERE ARE ISSUE IN THIS CASE
BESIDES THE MENTAL
RETARDATION, DETERMINATION
AND THE LOWER COURT'S
FINDING THAT MR. JONES WAS
NOT MENTALLY RETARDED.
>> LET ME ASK A QUESTION
THAT CONCERNS ME ABOUT THE
KEY OFFICIALSIES THE MENTAL
DEFICIENCIES IN THIS CASE.
HE WAS -- THE DEFENDANT WAS
SHOT IN THE HEAD BY THE
VICTIM.
IF THE DEFICIENCIES IN HIS
FUNCTIONING WERE CAUSED BY
THE GUNSHOT WOUND, YOU WOULD
AGREE THAT HE COULD NOT MEET
THE DEFINITION OF MENTAL
RETARDATION BECAUSE THERE
WOULDN'T BE UNSET BEFORE AGE
18.
AND IT CERTAINLY WOULDN'T
MEET THE CRITERIA OF ATKINS
IN THAT ATKINS IS ASSUMING A
REDUCED MORAL CULPABILITY
FOR THE CRIME SO THAT YOU
WOULD MEASURE THE MENTAL
FUNCTIONING AT LEAST LOOK AT
THE TIME OF THE CRIME.
SO U -- CAN YOU ADDRESS
WHETHER THERE IS EVIDENCE
THAT ANY OF THIS -- THESE
DEFICIENCIES, IN FACT, WERE
A RESULT OF THE GUNSHOT
WOUND AS OPPOSED TO
PREEXISTING DEFICIENCIES IN
HIS INTELLECTUAL
FUNCTIONING?
>> SURE.
ONE OF MY CONCERNS ABOUT THE
JUDGE'S ORDER IS PRECISELY
HER FINDING IN THE ORDER
THAT THE DOCTOR TESTIFIED
THAT THE MAJORITY OF THE
DEFENDANT'S DEFICIT WERE
CAUSED BY THE GUNSHOT WOUND
AT THE TIME OF THE OFFENSE.
I THINK THAT'S UNREASONABLE
DETERMINATION OF THE FACTS
IN THE JUDGE'S ORDER.
I THINK IF YOU REVIEW
DOCTOR'S TESTIMONY YOU WILL
FIND THAT NOWHERE DOES HE
SAY THAT.
AND, IN FACT, SINCE THE
DR. WAS INVOLVED IN THE CASE
THROUGH THE TIME HE
TESTIFIED HE HAD NEARLY 15
YEARS INVOLVEMENT IN THE
CASE AND THAT'S ONE FACTOR
THAT ALLOWED HIM TO FIND
MENTAL RETARDATION.
HE KNEW BASED ON HIS
TESTIMONY BACK AT TRIAL THAT
HE SAID THEN THAT HE
COULDN'T REALLY TESTIFY
ABOUT WHAT MR. JOAN REMORBID
STATUS.
IF PRIOR TO THE GUNSHOT
WOUND TO HIS FOREHEAD HE WAS
NORMAL IN OTHER WAYS, THAT
THE GUNSHOT ALONE WHATEVER
HIS DEFICIT WOULDN'T ALLOW
HIM TO BE MENTALLY RETARDED
HE WOULD HAVE ANOTHER
DISABILITY THAT IN FLORIDA
LAW DOESN'T ALLOW HIM TO BE
EXEMPT FROM THE DEATH
PENALTY.
BUT IN ADDITION TO THE MANY
FEEM MEMBER AND TEST AND
INTERVIEW THAT THE DOCTOR
DID OVER THE 15 YEARS, HE
ALSO HAD A MAY 1975
DISCHARGED SUMMARY FROM
JACKSONVILLE MEMORIAL THAT
HE DIDN'T HAVE IN TRIAL THAT
POINTED OUT THAT MR. JONES
HAD BEEN DIAGNOSED
PREVIOUSLY AS BORDER LINE
MENTALLY RETARDED.
IT ALSO IN THAT REPORT NOTED
THAT HE HAD, HAD.
>> IS BORDER LINE MENTALLY
RETARDED MENTALLY RETARDED?
>> IT REALLY DEPENDS ON
WHERE IN HISTORY GREW LOOK.
YOUR HONOR, CERTAINLY WHAT
WE TALK ABOUT NOW IS BORDER
LINE WAS NOT WHAT BORDER
LINE MEANT BACK IN 1975.
WHAT'S MOST IMPORTANT IS
THAT HE DIDN'T HAVE THAT AT
THE TIME HE DID THE 1991
THROUGH '93 EVALUATIONS AND
THAT IS A PRECURSOR, IT'S A
RED FLAG THAT SOMETHING IS
WRONG.
JUST LIKE THE 1988 PREMORBID
BETA-IQ SCORE OF 6 WHICH
ISN'T IN AND OF ITSELF
EVIDENCE OF MENTAL
RETARDATION BUT IT IS
EVIDENCE THAT ANY EVALUATOR
NEEDS TO LOOK AT AS PART OF
THE WHOLE SPECTRUM OF
POSSIBLE TRAUMA AND POSSIBLE
PROBLEMS RELATED TO MENTAL
RETARDATION.
>> HELP ME OUT WITH THE
FACTS HERE.
THIS RECORD STATEMENT OF
BORDER LINE WAS IT JUST A
HISTORICAL STATEMENT OR WAS
IT ACTUALLY AN EVALUATION IN
THE SUBSTANCE OF THE
EVALUATION?
>> THE DISCHARGE SUMMARY
TOOK INTO ACCOUNT HISTORY
AND MATERIAL THAT IS NOWHERE
ELSE IN THE RECORD.
IN OTHER WORDS AT THE TIME
THE EVALUATORS SAW HIM ON
INTAKE AND THEN DID THE
DISCHARGE THEY HAD
APPARENTLY BACKGROUND
MATERIAL THAT INCLUDED HIS
PREVIOUS DRUG TREATMENT, HIS
PREVIOUS HOSPITALIZATION
WHERE HE SPENT SIX WEEKS IN
ANIR CU BECAUSE OF A
DRUGGOVER DOSE IS AS A
YOU'VE STPHAOEUL.
IT TALKED ABOUT HIS USE OF
STREET DRUGS FROM THE AGE OF
11.
IT'S ALL INFORMATION THAT
ACCOMPLISHED IN THE
DISCHARGE SUMMARY THAT WAS
NEVER AVAILABLE UNTIL WE GOT
IN POST CONVICTION BUT ISN'T
REAP APPLY INDICATED IN THE
FACT THAT THOSE REPORTS THAT
ARE REFERRED TO ARE NOWHERE
TO BE FOUND.
SO IT'S NOT A STATEMENT
ON -- UPON DISCHARGE.
THAT'S THE EVALUATION OF
DISCHARGE OF HIS CONDITION.
>> I WOULD SAY IT'S MORE
ACCURATELY A PART OF THE
INTAKE HISTORY THAT THEY DID
AT THE TIME OF THE
ADMISSION.
NOW, I MENTIONED ALSO THAT
DOC 1988 BETA-THERE'S ALSO
AN INDEPENDENT ACCOUNTING BY
MR. JONES IN THERE WHEN
INMATE GIVE THEIR HISTORY
AND WHICH HE REFERRED TO HIS
JUVENILE DRUG OVERDOSE.
SO IT'S NOT LIKE THE ONLY
PLACE WE'VE EVER HEARD ABOUT
THAT IS THE 1975 DISCHARGE
SUMMARY.
HE ALSO YOU KNOW TWO YEARS
BEFORE THE CRIME IS TELLING
DOC ON INTAKE THAT HE HAD
THIS CHILDHOOD ADMISSION FOR
SIX WEEKS AND THAT'S
REPLICATED IN SOME OF THE
FAMILY TESTIMONY, TOO.
>> DON'T WE HAVE SCHOOL
RECORDS AND TESTIMONY FROM
THIRD GRADE TEACHER THAT
JONES WAS AVERAGE TO ABOVE
AVERAGE STUDENT?
>> A STATE CALLED THAT
TEACHER AS A REBUTTAL
WITNESS AT THE PRIOR
EVIDENTIARY HEARING.
THE DOCTOR TESTIFIED THAT HE
TALKED WITH LAURIN LONG
MR. JONES' ANXIETY A SECOND
TIME IN 2000 AND SHE TALKED
TO HIM BOTH ABOUT TEACHER
HAD TOLD HER AND WHAT HER
OWN MEMORY WAS ABOUT
MR. JONES.
>> WHAT DID THE TRIAL COURT
SAID ABOUT THE CREDIBILITY?
>> I'M SORRY YOUR HONOR.
>> DID THE TRIAL COURT
DETERMINE THE CREDIBILITY OF
THE AUNT?
>> SINCE THE ANXIETY DIDN'T
ACTUALLY TESTIFY AT THE
EVIDENTIARY HEARING I WOULD
SAY HER CREDIBILITY
DETERMINATION DIDN'T REALLY
GO TO WHAT THE AUNT TOLD
DR. ISENSTEIN SINCE THAT'S
SOMETHING HE RELIED ON AS AN
EXPERT.
SHE DIDN'T TESTIFY AT THE
EVIDENTIARY HEARING.
>> WHAT DID THEY DETERMINE
ABOUT THE DOCTOR'S
CREDIBILITY?
>> THERE WAS NO SPECIFIC
CREDIBILITY FINDING IN THE
ORDER AFTER THE
MID -- MENTAL RETARDATION
EVIDENTIARY HEARING.
WHAT SHE DID DO WAS DROP A
FOOTNOTE SAYING THAT THE
FAMILY WITNESSES THAT HAD
TESTIFIED AT THE PRIOR
EVIDENTIARY HEARING
INVOLVING INEFFECTIVE
ASSISTANCE OF COUNSEL WERE
NOT CREDIBLE.
>> DID THAT INCLUDE THE AUNT?
>> LIKE I SAID SHE DIDN'T
TESTIFY AT THE EVIDENTIARY.
SHE HAD TESTIFIED AT THE
PRIOR TRIAL.
I WOULD SAY, NO, AND OF
COURSE THAT COMMENT IN HER
MOST RECENT ORDER
AT -- AFTER THE MENTAL
RETARDATION HEARING DIDN'T
INCLUDE THE ADDITIONAL
WITNESSES THAT DR. ISENSTEIN
HAD TALKED TO IN BETWEEN THE
POST CONVICTION HEARING AND
THE MR EVIDENTIARY HEARING
INCLUDING TWO BROTHERS THAT
HAD NEVER BEFORE TESTIFIED
OR BEEN INTERVIEWED BY
ANYBODY.
A COMMON LAW WIFE THAT
MR. JONES LIVED WITH FOR
SEVERAL YEARS IN ATLANTA.
AND ONE OTHER WITNESS WHO I
CAN'T RECALL RIGHT NOW.
DR. ISENSTEIN ALSO TESTIFIED
ABOUT ADAPTIVE FUNCTIONING?
>> HE TESTIFIED IN SOME
DETAIL ABOUT IT.
HE FOUND THAT FIVE OF THE
TEN CRITERIA HE BELIEVED
MR. JONES MET.
>> MY QUESTION IS: DID HE
TESTIFY THAT IN ANALYZING
THAT PRONG THAT ONE LOOKS
TO -- AT LEAST HE LOOKED TO
THE DEFENDANT'S ADAPTIVE
FUNCTIONING BEFORE 18 AND
REALLY DIDN'T LOOK AT HIS
ADAPTIVE FUNCTIONING NOW.
AND THAT WAS A AN
APPROPRIATE WAY TO ANALYZE
IT.
>> THAT WAS HIS TESTIMONY.
>> WAS THERE CONTRADICTORY
TESTIMONY ON THAT, THAT SAID
THAT NO THE WAY YOU ANALYZE
ADAPTIVE FUNCTIONING IS NOW.
HOW YOU ADAPT NOW, THE ON
SETH BEFORE 18 CERTAINLY
GOES TO BEFORE 18.
BUT THE ADAPTIVE FUNCTIONING
PRONG GO TO HOW YOU ARE
FUNCTIONING NOW.
>> THAT'S CERTAINLY
DR. SUAWREZ'S TESTIMONY.
HE INTERVIEWED THE
DEPARTMENT OF CORRECTIONS
OFFICIAL FOR WHOM HE
ADMINISTERED THE TESTS.
AND I OF COURSE IN MY BRIEF
I TALKED ABOUT SOME OF THE
PROBLEMS WITH THIS TESTING
THAT CAME OUT IN HIS
TESTIMONY.
AND IN WEIGHING THE -- BOTH
THAT CONTRADICTORY TESTIMONY,
DID THE TRIAL COURT AGREE
WITH DR. SUAREZ AND DISAGREE
WITH DR. IRESSTEIN AND HE
DISAGREED ABOUT NOW BEFORE
18?
>> I BELIEVE THAT'S THE ONLY
WAY ONE COULD INTERPRET THE
ORDER.
I WOULD REFER YOU TO THE
CITATION I DID TO THE
KENTUCKY CASE THAT TALKS
ABOUT CULPABILITY AND HOW,
IN FACT IF YOU HAVE A
MENTALLY RETARDED OFFENDER
YOU LOOK TO THE I'M OF THE
OFFENSE OR BEFORE OR WHEN
YOU DETERMINE WHETHER THEY
ARE MENTALLY RETARDED OR.
THAT'S THE ONLY LOGICAL
THINGS TO DO PURSUANT TO
ATKINS AND IT'S FOCUS ON
CULPABILITY.
IF WE AGREE WITH THE TRIAL
COURT LEGALLY SPEAKING I
GUESS OR AS FAR AS WHAT THE
SESSION IS AND INTERPRET
INDEPENDENCE THE THREE
PRONGS IF WE AGREE WITH THE
TRIAL COURT AS PRONG NUMBER
2 PRESENT ADAPTY FUNCTIONING
THAT MEANS PRESENT NOT
BEFORE 18.
THEN WE SIMPLY HAVE TO -- WE
CAN'T TAKE INTO ACCOUNT
DR. ISENSTEIN TESTIMONY ON
THAT PRONG.
>> BELIEVE UNLESS YOU FIND
ITS UNREASONABLE APPLICATION
OF THE LAW TO THE FACTS AND
THAT HER FINDING ABOUT THE
FACTS WAS UNREASONABLE,
WHICH I THINK IF YOU LOOK AT
DR. SUAREZ' TESTIMONY WOULD
BE FAIRLY SIMPLE FOR YOU TO
DO.
HIS TESTIMONY SHOWS THAT HE
BASED HIS FINDING ON
INTERVIEWS WITH THE
DEPARTMENT OF CORRECTIONS
PEOPLE WHO FIRST OF ALL I
THINK THREE OR FOUR OR THE
FIVE PEOPLE HE ORIGINALLY
APPROACHED SAID THEY DIDN'T
KNOW ENOUGH ABOUT JOANS TO
DO THE INTERVIEWS AND THEN
THOSE PEOPLE HE DID
INTERVIEW ON MOST OF THEIR
ANSWERS THEY WERE GUESSING.
AND HE ADMITTED IT WAS
COMPLETE GUESSWORK ON THEIR
PART THAT HE SCORED POINTS
ON THE OBLAS BASED ON THEIR
GUESSING.
AS I TRIED TO SHOW ON THE
BRIEF I BELIEVE ON AT LEAST
TWO OF THE AREAS PERHAPS
JUST ONE, OF ADAPTIVE
FUNCTIONING DEFICIT THAT
DR. ISENSTEIN FOUND ANY
REASONABLE INTERPRETATION OF
DR. SUAREZ ABBAS RESULT
INDICATE HE DIDN'T MEAN THE
DEFICIT BASED ON SUAREZ'
TERMS.
>> I HAVE SOME DIFFICULTIES
IN AN APPROPRIATE CASE WITH
HOW ACCURATE THE ADAPTIVE
FUNCTIONING TEST ARE GOING
TO BE WHEN YOU ARE DEALING
WITH DEATH ROW DEFENDANTS.
IN A PRISON ENVIRONMENT.
WHICH IS HOW THEY STRUCTURE
IT.
BUT I THINK YOU HAVE OTHER
HURDLES TO GET OVER IN THIS
CASE.
TO ME THE BIGGEST HURDLE
BESIDE -- BESIDE THE FACT
THAT THE TRIAL COURT MADE
THE FINDING IS THAT I DON'T
KNOW THAT WHEN ATKINS WAS
DECIDED THAT THERE WOULD BE
THERE -- THIS NOTION THAT
THOSE DEFENDANTS THAT WERE
MENTALLY RETARDED -- AND IT
WOULD BE A PRETTY CLEAR
PICTURE THAT WOULD BE
PRESENTED BUT WHAT CONCERNS
ME HERE IS THAT IT WAS NEVER
CONTENDED AT TRIAL OR IN
POST CONVICTION PROCEEDINGS
THAT MR. JONES WAS MENTALLY
RETARDED.
AND NOT UNTIL THE REPLY
BRIEF IN THIS COURT WAS THAT
BROUGHT UP.
NOW, WE'RE DEALING THAT THE
FIRST PRONG YOU HAVE TO GET
THROUGH IS ONSET BEFORE AGE
18 AND AS JUSTICE CANTERO
SAID YOU HAVE WHOEVER PUT
THEM ON I ASSUME IT IT WAS
DEFENDANT IN POST CONVICTION
THIRD GRADE TEACHER WAS
SAYING HE WAS AN AVERAGE OR
ABOVE AVERAGE CHILD.
WHAT OUT YOU KNOW WITH THAT
SCENARIO, THAT IS IT'S TRULY
COMES ALONG AFTERS AKINS IS
DECIDED, CLEARLY, YOU KNOW,
I DON'T BELIEVE A DEFENDANT
FOR WANTING TO TAKE A SHOT
AT IT.
BUT IN TERMS OF THE
CREDIBILITY OF THIS
DEFENDANT'S MENTAL
RETARDATION, AND IN ADDITION
WITH THE PRESENCE OF THE
GUNSHOT WOUND TO THE HEAD
THAT CAN EXPLAIN AT LEAST
SOME OF THE DEFICITS, WHY
SHOULDN'T WE AFFIRM THE
TRIAL COURT'S FINDING IN
THIS CASE?
AND WHAT -- SO DO YOU
UNDERSTAND THE DRAFT
I'M -- I THINK I MENTIONED
IN CHERRY THIS IDEA THAT
JOHNNY COME LATELY L
RETARDATION CLAIMS.
SHOULDN'T WE LOOK AT THOSE
THROUGH A DIFFERENT LENSE
THAN THOSE CASES WHERE THE
CONSISTENTLY CONTENDED THE
PERSON IS MENTALLY RETARDED?
>> THAT'S A COMPLICATED
QUESTION.
I DON'T -- I WILL TRY TO
ANSWER AS BEST I CAN.
>> IT'S TWO ASPECT OF WHAT'S
TROUBLING ME IN MANY OF THE
CASES THAT'S IF IT WAS
PRETTY APPARENT WHY IS IT
COMING ON 20 YEARS AFTER AND
I ALSO DO SEE THAT OTHER
ISSUE THAT YOU BROUGHT UP
THAT -- THE CONCERN ABOUT
THE ADAPTIVE FUNCTION BUT I
THINK YOU HAVE THE OTHER
HURDLES TO GET THROUGH HERE.
>> IF YOU LOOK AT THE DOCTOR
ISENSTEIN'S TESTIMONY AT THE
PRESEEDINGS HE ACKNOWLEDGES,
I THINK IN THAT TESTIMONY
THAT BACK AT THE TIME OF
TRIAL IT WAS ACTUALLY HIS
UNDERSTANDING THAT UNDER 3-R
YOU HAD TO HAVE IQ UNDER 70
TO ORDER TO QUALIFY.
AT THE TIME HE HAD DONE HIS
TESTING IN '91 AND 199 K3,
HIS SCORES WERE RESPECTIVELY
I BELIEVE 72 AND 70.
SO HE HAD AN HONEST
MISUNDERSTANDING AT
THAT -- AT THAT TIME AS TO
WHAT THE FUNCTIONAL
INTELLIGENCE LEVEL WAS THAT
WAS NECESSARY.
YOU WILL SEE THAT DR. SUAREZ
MAKES THAT SAME MISTAKE IN
SOME OF HIS CONTEMPORARY
TESTIMONY.
HE MADE -- HE SAID MATES
IT'S 70.
PURSUANT TO DIAZ.
I THINK THERE'S AN HONEST
DISAGREEMENT AND
MISUNDERSTANDING AT THE TIME
OF TRIAL.
YOU MAY RECALL FROM THE
RECORD THAT DR. ISENSTEIN
TESTIFIED IN THE PRIOR
PROCEEDING THAT TRIAL
COUNSEL DIDN'T EVEN ASK HIM
AT THAT TIME ABOUT WHETHER
OR NOT HE THOUGHT MR. JONES
WAS MR. JONES WAS COME
TENT OR NOT AND HIS OPINION
WOULD HAVE BEEN BACK AT THAT
TIME THAT HE WAS NOT
CONFIDENT, SO IT FITS IN
WITH DR. EISENSTEIN'S PAST
WORK ON THE CASE, MENTAL
RETARDATION HAT TIME WOULD
HAVE BEEN SIGNIFICANT
LITIGATION BUT NOT A BAR ON
THE DEATH PENALTY AT THE
TRIAL LEVEL, SO ON THAT
BASIS, I REALLY --
>> I MEAN YOU AGREE BACK
WHEN THE CASE WAS TRIED, I
MEAN, THERE WAS CERTAINLY
MANY CASES WHERE MENTAL
RETARDATION WAS BEING
ADVOCATED.
I FIND THAT A LITTLE
DISINGENIUS THAT SOMEBODY
LOOKING AT A NUMBER 70
WOULDN'T KNOW THAT THAT IS
AT LEAST BORDERLINE IF NOT
MENTAL RETARDATION.
>> AND THAT EVIDENCE DID, OF
COURSE, COME TO THE TRIAL.
I MEAN, DID HE TESTIFY ABOUT
WHAT HIS FINDINGS WERE ON
THE WAY AND ABOUT WHAT HIS,
YOU KNOW, WHAT THE RAT
SCORES WERE, THEY WERE ON
THE EDUCATIONALLY-DEFISH
SENT LEVEL THAT POINT, FOR
WHATEVER REASON IT WAS NOT
SPECIFICALLY ARCTICLATED AND
LET ME --
>> LET ME CLARIFY FOR THAT
RECORD.
WE ARE NOT JUST TALKING
ABOUT EISENSTEIN, WE ARE
TALKING ABOUT TWO
PSYCHOLOGIST, THREE FORENSIC
PSYCHOLOGISTS OVER THE
HISTORY OF THE CASE, SO AT
LEAST SEVEN MENTAL HEALTH
EXPERTS HAVE EVALUE WEIGHED
THIS DEFENDANT, THE ONLY ONE
OF THOSE WHO HAVE INDICATED
NONE BEFORE HIM, BUT IN THIS
PROCEEDING, EISENSTEIN CAME
POR WARD AND TESTIFIED THAT
HE THOUGHT HE WAS MENTALLY
RETARDED, BUT NONE OF OH
OTHERS DID, CORRECT?
>> I THINK TO BE CORRECT
ABOUT IT.
THERE WERE ONLY TWO PEOPLE
WHO TESTIFIED TO EXPERTS
THAT TESTIFIED AT THE MENTAL
RETARDATION HEARING THAT WAS
DR. EISENSTEIN AND SCHWARZ.
>> IN THE HE PRIOR
PROCEEDING, THIS DEFENDANT
HAS BEEN EVALUATED BY SEVEN
MENTAL HEALTH EXPERTS AN UP
UNTIL THIS PROCEEDING WE ARE
TALKING ABOUT TODAY,
NEITHER, NONE OF THOSE
INCLUDING DR. EISENSTEIN
FOUND HIM TO BE MENTALLY
RETARDED.
>> THAT IS CORRECT.
THAT IS ABSOLUTELY RIGHT.
>> YOU ARE WELL INTO THE
REBUTTAL.
FINISH YOUR ANSWER, BUT YOU
ARE USING UP YOUR REBUTAL.
>> SURE.
VERY QUICKLY.
S ONLY, ONE OF THE EXPERTS
WAS DR. PRITCHARD, THE LOWER
COURT STRUCK AN ALLOWED HIS
RAW DAT TAT TO BE IN
TERPTATED BY DR. EISENSTEIN.
HIS IQ SCORE IS 75.
THE LAST THAT WAS DONE, I
THINK IF YOU LOOKED AT THE
SCORES FROM 1991 TO 2005
PARTICK CAPITOL HILL THE 3
FROM 99 TO 2005 YOU WILL SEE
A PERFECT EK AMPLE OF THE
PRACTICE OF THAT, HOW IT
WORKS WITH 3 WITH IQ SCORE
GOING FROM 67 TO 75 OVER SIX
YEARS.
>> THAT IS ONE OF THE THINGS
THAT TROUBLES ME ABOUT THE
CASE THAT IS WE HAVE A
NUMBER OF IQ TESTING HERE AN
YOU ARE REALLY IN ESSENCE
ASKING US TO RELY ON ETH ARE
THE 93 OR THE 99 TEST WHICH
THOSE SHOW 67 AND 70 WHEREAS
ALL OF THE OTHERS ARE ABOVE
70, SO WHICH OF THESE TESTS
REALLY ARE WE TO RELY ON.
>> WITHOUT GETTING TO
REBUTTAL TIME, I WOULD POINT
OUT THE TWO LOWEST SCORES
WERE BOTH ATKINS WHICH IS
2002 DAYS WERE BOTH AT A
TIME WHEN MENTAL RETARDATION
WAS NOT SOMETHING THAT THE
INMATE OR THE COUNSEL KNEW
MIGHT EVENTUALLY SAVE THEM
FROM THE DEATH PENALTY, SO
MY ARGUMENT WOULD BE THE
EARLIER SCORES ARE PROBABLY
MORE RELIABLE, BUT
ULTIMATELY, THE SAME
QUESTION THAT YOU CAME UP.
>> HOW ABOUT THE 91 SCORE
AND THE 72?
>> I WILL TRY TO ANSWER THAT
BETTER FOR YOU IN REBUTTAL
BECAUSE I ONLY GOT A MINUTE
AND 30 SECONDS LEFT.
>> MAY IT PLEASE THE COURT,
SANDRA JAGGARD ATTORNEY
ASSISTANT GENERAL.
THERE IS NO DIAGNOSIS FOR
RETARDATION IN THE 75
HOSPITAL REPORT WHAT IT SAYS
IN THE HISTORY SECTION THAT
IS THE DEFENDANT WAS LABELED
AS BORDERLINE MENTALLY
RETARDED THERE IS NO SUCH
THING AS MENTALLY RETARDED
YOU ARE EITHER MENTALLY
RETARDED OR BORDERLINE.
IT IS LIKE BEING PREGNANT.
YOU ARE RETARDED OR YOU ARE
NOT.
>> IT ONLY SEEMS AS THOUGH
THIS CONCEPT OF MENTAL
RETARDATION OF HOW MANY, HOW
MANY POINTS HAVE BUILT IN
ERROR ARE THERE, ALL OF
THESE THINGS, IT DOESN'T
SEEM AS THOUGH IT IS JUST
THIS BLK AND WHITE THAT
COMES OUT.
ALL OF THESE IS SUCH SA SOFT
SEE YOU DWLINS AREA, THAT
THE TEST, YOU KNOW, WE HAVE
STANDARD DEVIATIONS, WE HAVE
BIMENT IN ERROR, ALL OF
THESE THINGS, WHERE GOU?
DO YOU ADD THE FIVE POINT,
DO YOU TAKE THEM AWAY?
>> IT IS NOT FIVE POINTS.
IT IS STA TIST CALL
CONSTRUCT WHICH CAN BE A
GREAT BARRIER OF NUMBER OF
POINTS DEPENDING ON THE AGE
OF THE PERSON AND THE
VARIOUS STATISTICAL ANALYSIS.
>> WE SIT HERE, MISS
JAGGARD, WE HEAR IT FRIDAY
FROM THE STATE THAT IT IS
THOSE POINTS, SO I MEAN, YOU
HEAR DIFFERENT ARGUMENTS ON
THIS.
WE HAVE TO GET IT RIGHT.
THERE IS ONLY ONE LAW ON
FLORIDA.
WE DON'T GO ON PER CASE
BASIS.
WE NEED TO GET UNDERSTANDING
ON WHAT THE NUMBERS MEAN
THAT CAME UP IN CHERRY AS
WELL THAT YOU AVERAGE ALL OF
THESE THINGS TOGETHER, WHERE
DO YOU GO, IS IT JUST BLACK
AND WHITE?
TO THIS COURT, AT LEAST, TO
ME, IT DOESN'T APPEAR THAT
IT IS THIS BLK AND WHITE IN
ANY CASE THAT WE HAVE EVER
SEEN.
>> IT IS NOT AVERAGING.
THE REASON YOU HAVE THAT,
THAT 95% COMPETENCE INTERVAL
IS TO -- BECAUSE YOU CAN
HAVE VARIATIONS IN THE
HEALTH OF THE TEST SUBJECT
IN THEIR CONCENTRATION
LEVEL, PERHAPS, MR. JONE'S
DIABETIC, IF HE HAS NOT HAD
THE FOOD AT THE PROPER TIME,
THEREFORE, IT IS SUPPOSED TO
ACCOUNT FOR REPEATED
TESTING.
HERE, YOU HAVE REPEATED
TESTING.
REPEATED TESTING THAT IS TOO
HIGH REPEATEDLY.
IN ADOIX THAT, OTHER THAN
DR. EISENSTEIN'S SCORE WHICH
INCLUDE THE 7 AND THE 67,
THE SCORES COME WITHIN.
THE 75 REPORT, WELL, IT
INDICATEDS HE IS LABELED AS
BORDERLINE MENTALLY RETARDED
THEN HAS EVALUATION CHECK
SCORE OF AVERAGE, NOT
TARREDED.
BASED ON THE EVALUATION
LAURA LONG TESTIFIED AT
TRIAL, TESTIFIED AT TRIAL
THAT THE DEFENDANT WAS GOOD
STUDENT WHO RECEIVED CONDUCT
AWARDS AND THIS TESTIMONY
ABOUT BEING A BAD STUDENT IS
DR. EISENSTEIN WANTING TO
RECOUNT WHAT LAURA LONG TOLD
HIM YEARS AFTER.
>> DO WE HAVE THE SCHOOL
RECORDS?
>> WE DO HAVE THE SCHOOL
RECORDS.
>> WHAT IS IT?
>> HE GETS Bs, Cs UNTIL HE
STARTS RUNNING AWAY TO VISIT
HIS FAMILY IN NEW YORK AND
EVENTUALLY MOVE WIN THEM,
WHICH INDICATEDS HE MANAGED
TO STOWAWAY ON PUBLIC
TRANSPORTATION TO GET
HIMSELF ONCE TO VIRGINIA,
ONCE ALL THE WAY TO NEW
YORK.
HE CERTAINLY HAS CAPACITY TO
USE.
>> HE DID THAT WHEN HE WAS
11ERS OLD.
>> YES, THAT WOULD INDICATE
HE DIDN'T HAVE A PROBLEM
WITH THE ADAPTIVE
FUNCTIONING BEFORE HE WAS 18
IF HE IS ABLE TO DO THOSE
TYPES OF THINGS.
>> I WANT TO GO BACK A
MOMENT TO THE IQ SCORE
BECAUSE I FIND IT REALLY
TROUB LING WE HAVE THE
MULTIPLE SCORES AND WHAT DO
YOU MAIN FAIN WE SHOULD DO
WITH THESE?
WHAT WHICH OF THESE IS
CREDIBLE?
ARE THEY ALL CREDIBLE?
IF SO, WHAT ARE WE GOING TO
DO WITH THEM?
>> WELL, THE STATE'S
POSITION THE REASON YOU HAVE
THE 95% COMPETENT INTERVAL
IS TO LOOK AT THE SCORES
BECAUSE IT IS SUPPOSED TO
REFLECT WHAT WOULD HAPPEN
OVER REPEATED TESTING.
HERE YOU HAVE REPEATED
TESTING.
YOU DON'T NEED TO WORRY
ABOUT THE 95% COMPETENCE
INTERVAL, YOU HAVE REPEATED
TESTING.
YOU HAVE REPEATED TESTING
WITH ALL OF THE TESTS BEING
GIVEN BY EVERYONE OTHER THAN
DR. EISENSTEIN, THERE IS
PROBLEM WITH THE EFFORT, HE
IS LINGERING ON THE TEST,
THEREFORE, SO WE CAN THROW
OUT -- THE 93 AND THE 99
TEST, WE CAN THROW OUT
BECAUSE THE DOCTOR SAYS THAT
HE WAS MA LUN GERING.
>> WELL, THE DOCTOR WHO GAVE
THE 93 AND THE 99 SCORES IS
EISENSTEIN, HE NEVER
BOTHERED TO LOOK AT THAT OR
CONSIDER IT.
THE STATE'S POSITION IS YOU
LOOK AT THE GENERAL TREND
HERE, THE GENERAL TREND IS
YOU HAVE SCORES THAT ARE TOO
HIGH, THAT IS WHAT THE 95%
INTERVAL IS DESIGNED TO
ACCOUNT FOR WHAT IS WOULD
HAPPEN IF WE REPEATEDLY TEST
HIM, WHERE WOULD THESE FALL?
YOU HAVE THE REPEATED
TESTING HERE.
YOU DON'T NEED TO WORRY
ABOUT A 95% COMPETENCE
INTERVAL.
YOU ARE NOT WORRIED ABOUT
ONE TEST, WHAT WAS EFFECTING
THAT ONE TEST THAT MAY HAVE
CAUSED IT TO WIGGLE A LITTLE
OVER WHAT HIS FUNCTIONING.
THE STATE'S POSITION IS
THESE SCORES TO THE EXTENT
THAT YOU HAVE THEM, NUMBER
ONE, THEY TEND TO BE TOO
HIGH TO BEGIN WITH WHICH
INDICATES HE IS NOT MENTALLY
RETARDED, NUMBER TWO ALL OF
THE ONES COME WITH A NOTE
THAT EVEN THESE SCORES WHICH
ARE TOO HIGH IN THEMSELVES
ARE TOO LOW TO REFLECT HIS
TRUE INTELLECTUAL
FUNCTIONING.
>> SO WE ARE THEN DON'T HAVE
THE FIRST PROMPT OF THE
RETARDATION TESTS?
>> WE DON'T HAVE THE FIRST.
WE DON'T HAVE THE SECOND
PRONG WHICH ACCORDING TO THE
STATUTORY AND RULE
DEFINITION IS IQ SCORE
CONCURRENT WITH DEFICITS
UNADPTIVE FUNCTION.
IT MEANS AT THE SAME TIME,
VOW TO TEST THE ADAPTIVE
FUNCTIONING AT THE SAME TIME
YOU TEST THE IQ WHICH WOULD
MEAN BEFORE '91 AND 2005
WOULD BE THE APROPERTY OF
TIME TO HAVE MEASURED HIS
ADOPTIVE FUNCTIONING.
DR. EISENSTEIN DIDN'T
ATTEMPT TO MEASURE HIS
ADAPTIVE FUNCTIONING THEN
EVEN IF YOU ACCEPT IT IS AT
THE TIME OF THE CRIME, THE
DEFENDANT WAS 29 AT THE TIME
OF THE CRIME.
DR. EISENSTEIN WAS MEASURING
BEFORE HE WAS 18.
THAT WOULDN'T ACCOUNT FOR
EVEN AT THE TIME OF THE
CRIME.
>> DO YOU SEE A POTENTIAL
PROBLEM IN A CASE WHERE IT
LOOKS PRETTY CLEAR THAT A
DEFENDANT, YOU KNOW, IS
LABELED A SLOW LEARNER, WAS
IN CLASSES INDICATIVE OF A
VERY LOW INTELLECTUAL
FUPTIONING, WHERES THERE WAS
KIND OF TESTIMONY ABOUT NOT
LIVING ON HIS OWN THAT
TRYING TO MEASURE THE
ADAPTIVE FUNCTIONING IN A
PRISON ENVIRONMENT, I MEAP,
SHORT OF OFFICERS SAYING,
THIS PERSON IS READING MORE
IN PEACE, YOU KNOW IS THE
LEADER OF THE -- THINGS THAT
ARE ACTUALLY OBSERVATIONS AS
OPPOSED TO THESE TESTS WHICH
ARE MEANT TO MEASURE PEOPLE
WHO ARE LIVING ON THEIR OWN,
NOT IN A PRISON ENVIRONMENT.
MIGHT I START OFF IN ATKINS
TEFL THEY USE PRISON.
NUMBER TWO, THEY ARE GOING
TO HAVE PRIOR IN CARSRATION,
THEY ARE GOING TO HAVE BEEN
LIVING WITH PRISON GUARD, IN
FACT, THIS DEFENDANT UP TO
THREE WEEKS BEFORE THIS
CRIME HAD BEEN LIVING WITH
PRISON GUARDS FOR YEARS
BECAUSE THAT IS WHERE WE IS
GOING TO BE FUNCTIONING.
YOU ARE GOING TO HAVE TO
COPE WITH THE FACT THAT
PEOPLE ARE GOING TO BE
FUNCTIONING IN A RESTRIFKT
ENVIRONMENT AT TIMES.
-- RESTRICTIVE ENVIRONMENT
AT TIMES.
SECONDLY, THEY DO HAVE THE
ABILITY WHILE THEY MAY NOT
DO IT THE SAME WAY YOU AND I
DO IT, MR. JONES HAD A
PROBLEM WITH THE TELEVISION
IN THE CELL, WHILE HE
COULDN'T TAKE IT OUT TO THE
REPAIR STORE, HE HAD TO GO
ABOUT GETTING IT REPAIRED.
HE HAD TO GO THROUGH A
PROCESS OF DOING THAT.
HE HAD TO USE RESOURCES TO
DO THAT.
MR. JONES HAS HEALTH
PROBLEMS.
HE HAS TO BE CONCERNED FOR
HIS PERSONAL SAFETY.
HE DEMONSTRATED AN ABILITY
TO DO THAT.
TAKE MESSED ON HIS OWN, AND
THE PRISON GUARDS WOULD BE
ABLE TO SEE WHETHER OR NOT
THEY COULD DO THAT.
THEY MAINTAIN INMATE CAN
TEEN ACCOUNTS, MR. JONES
INDICATED A QUITE EXTENSIVE
KNOWLEDGE OF THE ACCOUNT
WHEN HE BEGINS TO COMPLAIN
ABOUT HOW THEM SENDING MONEY
BUT IT HAS NOT BEEN CREDITED
TO HIS ACCOUNT.
WE ARE TALKING ADAPTIVE
FUNCTIONING, WE ARE NOT
TALKING ROCKET SCIENCE,
WE'RE TALKING FEEDING
YOURSELF, CLOTHING YOURSELF,
TAKING CARE OF YOUR HEALTH,
COMMUNICATES WITH OTHERS, SO
EVEN PRISON GUARD WAS HAVE
THE ABILITY TO OBSERVE
WHETHER OR NOT PEOPLE COULD
DO THAT.
AND MY OPPONENT KEEPS ON
TALKING ABOUT UNREASONABLE
ABLYGATION OF THE LAW.
THIS IS A QUESTION, THE
QUESTION OF WHETHER THE
TRIAL COURT FINDING IS
SUPPORTED BY EVIDENCE.
HERE THE TRIAL COURT FOUND
NO CREDIBLE EVIDENCE THAT
THE DEFENDANT COMMITTED ANY
CRIME.
WE HAVE DR. EISENSTEIN
BOOING THE ONLY ONE
TESTIFYING THAT THE
DEFENDANT IS RETARDED THIS
IS THE FOURTH TIME
DR. EISENSTEIN HASED IN THE
CASE, THE FOURTH TIME
DR. EYE SEN STEIN HAS BEEN
FOUND INCREDIBLE.
WHEN ONE CONSIDERS WE HAVE A
LONG HISTORY IN THE CASE OF
THE DEFENDANT'S OWN DOCTORS
TALKING ABOUT HIM BEING --
DR. EISENSTEIN, WELL, THE
TRIAL TESTIMONY CHANGED
BECAUSE HE GOT THIS 75
REPORT.
HE TESTIFIED AT THE FIRST
POST-CONVICTION HEARING
DIDN'T FIND THE DEFENDANT
RETARDED, HE HAD THE REPORT
THEN.
DR. EISENSTEIN'S EXPLANATION
WAS BETWEEN THE EVIDENTIARY
HEARING IN 2000 AND THE
PRESENT EVIDENTIARY HEARING
THE DEFINITION OF RETARD
CHANGED, THERE IS NO CHANGE
IN THE DSM.
THE TRIAL COURT HAD AMPLE
BASES TO FIND HIM CREDIBLE.
THE STATE RESPECTED TO FIND
THE COURT ORDER.
>> THANK YOU VERY MUCH.
>> REBUTAL?
>> AS TO THE QUESTION OF
INMATE ACCOUNTS, THIS IS
ANOTHER EXAMPLE OF WHERE THE
COURT'S ORDER SIMPLY IS NOT
TRUE.
THERE IS ABSOLUTELY NOT A
SHRED OF EVIDENCE THERE IS
ANYTHING ABOUT WIRE
TRANSFERS FROM EUROPE AS
INDICATIVE OF ACTIVE
FUNCTIONING DEFICIT ANYWHERE
IN THE RECORD.
THERE ARE THREE INMATE
GRIEVANCES IN WHICH
MR. JONES TALKS ABOUT THINK
FACT THAT THE MONEY ORDERS
HAVE NOT GOTTEN INTO HIS
ACCOUNT.
THIS IS SOMETHING THAT IS
NOT -- THIS IS -- THIS HAS
NOTHING TO DO WITH ADAPTIVE
FUNCTIONING.
IT IS COMPLETE
MISREPRESENTATION OF THE
FACTS BELOW, IS JUST ONE
EXAMPLE OF MAN ANYONE THE
ORDER THAT DO JUST THAT.
THE MMIs IN WHICH THE COURT
SAYS DR. EISENSTEIN SAYS
THEY ARE CLEARLY INVALID.
THAT IS NOT WHAT HE
TESTIFIED.
IN FACT, HE DID THE MMPI AND
DIDN'T THINK THE MMPIs WERE
CLEARLY INVALID, HE THOUGHT
THE ELEVATED F-SCALE WAS AN
EXAMPLE OF A CRY FOR HELP.
AND THE COURT ALSO SAYS THAT,
AS YOU I SAID BEFORE, THE,
THE IQs WERE CONSISTENTLY
ABOVE 70.
THERE WERE ONLY 4 IQs SCORES
THAT THE COURT SHOULD HAVE
CONSIDERED IN THE CASE TO
BEGIN WITH.
THE THREE THAT
DR. EISENSTEIN DID AND '91,
'93 AND '99 THEN THE 2003 IQ
SCORE BY DR. CADDY,
DR. PRITCHARD DIDN'T OF T.
HE WAS STRUCK AS A WITNESS.
EISENSTEIN GOT TO LOOK AT
THE RAW DATA TO MAKE WHAT
THEY COULD OUT I OF IT.
THE DOCTOR CHOSE NOT EVEN TO
GIVE A CREDITED IQ TEST.
HE GAVE A SCREENING IQ TEST
WHICH THE COURT RELIED ON
NOT ONE WIDTH BECAUSE HE
KNEW IT WAS LIKELY THAT
MR. JONES WOULD SCORE LOWER
BECAUSE THAT IS WHAT THE
RECORDS AND THE MANUALS
ABOUT THE TEST SAY.
SO HE CHOSE TO GIVE
UNACREDITED TEST, THEN GIVE
TESTIMONY WHEN HIS OWN TEST
SHOWED THAT THE NON-VERBAL
ASPECT OF HIS MELINGERING
RESULTS SHOW THE TONY
INVALID BUT THE VERBAL
RESULTS SHOW THAT MR. JONES
WAS COOPERATING COMPLETELY,
SO I WOULD ASK THE COURT TO
TAKE A LOOK AT THIS CASE
BOTH AS TO THE FUNCTIONING,
THE IQ, THE ADAPTIVE
FUNCTIONING AND THE FIVE
AREAS THAT DR. EISENSTEIN
FOUND WERE DEFICIENT AS TO
THE QUESTION OF ONSET, I
THINK RETROSPECTIVE
DIAGNOSIS IS THE ONLY
POSSIBLE WAY FOR AN INMATE
IN THE CIRCUMSTANCE TO POST
CONVICTION WITH A CRIME LONG
BEFORE AN A DERTH OF PRIOR
RECORDS TO MAKE THE SHOWING
HE IS MENTALLY RETARDED.
YOU THANK YOU FOR YOUR TIME.
>> THANK YOU VERY MUCH.
THE COURT WILL TAKE THE
MORNING RECESS.
>> PLEASE Rise