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Harry Franklin Phillips v. State of Florida
SC06-2554
>>> ALL RISE.
NEXT CASE ON OUR CALENDAR THIS MORNING IS PHILLIPS v. STATE OF FLORIDA. [INAUDIBLE CONVERSATIONS]
GOOD MORNING, CHIEF JUSTICE LEWIS AND THE MEMBERS OF THE COURT. I'M WILLIAM HENNIS FROM THE CAPITAL COLLATERAL OFFICE IN FORT LAUDERDALE HERE ON BEHALF OF HARRY FRANKLIN PHILLIPS AND MY ASSOCIATE STAFF BARBARA ACOSTA IS WITH ME AT COUNSEL TABLE AS WELL.
LET ME ASK YOU, MR. HENNIS IT SEEMS LIKE YOU -- YOU HAVE AN UPHILL BATTLE HERE IN THE SENSE THAT THE TRIAL COURT JUDGE CLEARLY MADE A CREDIBILITY DETERMINATION THAT DR. SUAREZ, THE STATE'S EXPERT WAS THE MORE CREDIBLE WITNESS AMONG OTHER THINGS BECAUSE HE HAD DONE ADDITIONAL TESTS TO DETERMINE WHETHER THE DEFENDANT WAS MALINGERING, AND HAD DETERMINED THAT HE WAS. ALL HIS EXAMINATIONS SHOWED THAT HE HAD AT LEAST A 75 IC. WE'VE, AS A THRESHOLD MATTER, THE STATUTE SAYS IT REQUIRES 70. AND WE'VE SAID THAT 70 MEANS 70. SO AS FAR AS THE ISSUE OF WHETHER THE DEFENDANT IS MENTALLY RETARDED, IT SEEMS LIKE YOU HAVE A PRETTY MUCH OF ABUPHILL BATTLE. YOU MAY HAVE A GOOD ARGUMENT ON ON THE STANDARD THAT SHOULD APPLY AND I DON'T KNOW IF YOU ARE GOING TO ADDRESS THAT. THAT SEEMS LIKE MUCH MORE OF A PRESSING ISSUE.
THERE ARE SEVERAL QUESTIONS WRAPPED UP IN YOUR QUESTION. LET ME TRY TO APPROACH THEM ONE BY ONE. FIRST OF ALL --
I'M TAKING MY EXAMPLE FROM JUSTICE PARIENTE.
I WHISPERED THAT TO HIM.
AS TO YOUR QUESTION ABOUT THE I.Q. SCORE I AM AWARE OF THE DECISION IN JONES AND CHERRY WHERE YOU TALK ABOUT THE BRIGHT LINE RULE. I THINK AS IN THE CASE OF VICTOR JONES DIFFERENT IN THIS CASE AND JONES AND CHERRY IS THERE WAS AN IMPTQ. SQOER.
THAT WAS FROM THE DEFENSE EXPERTS. I GO BACK, THE TRIAL JUDGE DETERMINED THE CREDIBILITY OF THE STATE'S EXPERT SO I THINK YOU'RE ZUK AS A MATTER OF WHAT THE FACTS ARE TO WHAT THE STATE SAID AND THE STATE AT NO POINT HAD ANYTHING UNDER 75.
WELL I THINK ITS IMPORTANT ALSO TO RECOGNIZE THAT THE JUDGE'S ORDER WHICH I GUESS WE'RE -- WE HAVE TO LOOK AT AS BEING SUPPORTED BY COMPETENT SUBSTANTIAL EVIDENCE IF WE'RE GOING TO -- IF YOU'RE GOING TAREVIEW IT, HE SPECIFICALLY FOUND THAT THE TESTING, THE IMPTQ. TESTING THAT DR. SUAREZ, THE STATE DID, WAS NOT VALID NOW IF THAT WAS A MATTER OF LAW OR A MIXED QUESTION OF LAW AND FACT, YOU CAN LOOK TO HIS ORDER TO DETERMINE THAT YOURSELF.
THE COURT FOUND THAT SUAREZ'S I.Q. TESTING WAS NOT VALID?
THAT'S RIGHT. DR. SUAREZ USED A TEST ATEST OF NONVERBAL INTELLIGENCE, WHICH IS NOT ONE OF THE TESTS THAT STATUTES REQUIRE, WHICH IS EITHER A WAGED, OR SOMETHING ELSE THAT THE COURT ACCEPTS AND HIS ORDER HE SPECIFICALLY MAKES FINDINGS THAT THIS WAS NOT A TEST THAT WAS APPROPRIATE SCPFT I THINK THAT IN THE CONTEXT OF HIS ORDER, IF YOU COMPARE THAT FINDING WITH THE FINDING THAT HE MADE ABOUT THE OTHER TESTING, PARTICULARLY THE VALIDITY TESTING THAT YOU'RE TALKING ABOUT, IT DOES RAISE QUESTION AS TO WHETHER OR NOT THOSE FINDINGS ARE SUPPORTED BY COMPETENT SUBSTANTIAL EVIDENCE. IT ALSO RAISES AN ISSUE I THINK AS TO WHAT STANDARD THIS COURT SHOULD EVALUATE THOSE FINDINGS BY THE TRIAL COURT --
WELL, I UNDERSTAND. THAT'S AN ISSUE BUT GETTING BACK TO THE ORIGINAL POINT. EVEN IF YOU ACCEPT THE DEFENSE EXPERTS YOU CAN SEE THAT THROUGH THE HISTORY OF THIS DEFENDANT'S LIFE, HE HAS BEEN TESTED ON HIS I.Q. SEVERAL TIMES AND AT NO TIME UNTIL THE LAST TESTING BY ONE DEFENSE EXPERT DID HE EVER HAVE AN I.Q. BELOW 75. I THINK IT WAS IN THE JONES CASE OR THE CHERRY CASE WHERE WE HAD A SIMILAR SET OF FACTS WHERE THE DEFENDANT HAD BEEN TESTED SEVERAL TIMES THROUGHOUT HIS LIFE HONE I.Q. TEST OF 70, EVERYTHING ELSE WAS ABOVE 70. AND WE DETERMINED THAT BASED ON THOSE FACTS, THE DEFENDANT WAS NOT MENTALLY RETARDED SO HOW IS THAT THIS CASE ANY DIFFERENT FROM THOSE?
WELL, I THINK, I THINK IT'S NOT SUBSTANTIALLY DIFFERENT AS FAR AS THAT PARTICULAR ISSUE IS CONCERNED. AND I THINK THAT DOES ALWAYS RAISE THE CONCERN RAISED IN CHERRY AND IN JONES THAT THIS COURT'S FINDING THAT THERE'S BRIGHT LINE RULE IN FLORIDA IGNORES THE WHOLE ISSUE OF STANDARD ISSUE -- STANDARD ERROR OF MEASUREMENT, AND WHETHER OR NOT EVEN AS THE EXPERTS IN CHERRY TESTIFIED THAT THE CLIENT WAS MENTALLY RETARDED BECAUSE OF THE IQ SCORES IN 70 TO 75 RANGE. SINCE THE COURTS REACHED THAT ISSUE I WASN'T GOING TO MAKE ADDITIONAL ARGUMENT ABOUT THAT. I DON'T THINK THERE'S MUCH MORE I CAN SAY THAT HASN'T ALREADY BEEN BRIEFED ABOUT IT. I WOULD SAY THAT AS FAR AS REVIEW BY THIS COURT OF THE HOLDINGS IN CHERRY AND IN, IN JONES AND WHAT I'VE PRESENTED IN MY BRIEFING THAT 921137'S, YOU KNOW, STANDARDS, YOU DO NEED TO LOOK AT THAT AS WELL AS THE ISSUE OF DEFICITS ADAPTIVE FUNCTIONING EXISTING CONCURRENTLY WITH IQ SCORES IS WHAT IT IS IT IS. I WOULD SUBMIT TO YOU THAT ALL THAT PORTION OF THE STATUTE MEANS IS THAT LOW I.Q.s HAVE TO EXIST WITH FUNCTIONAL DEFICITS FOR A MENTAL RETARDATION DIAGNOSIS. NOW IF SOMEONE IS NOT MENTALLY RETARDED AT THE TIME OF THE CRIME OR BEFORE AGE 18, WHICHEVER CAME FIRST, THERE'S NO WAY THEY CAN EVER BE MENTALLY RETARDED. THAT'S WHAT THAT'S TRYING TO POINT OUT.
THAT'S THE WHOLE POINT OF THE STATUTE, MENTAL RETARDATION HAS A ONSET BEFORE 18. THAT'S WHAT THE STATUTE REQUIRES F. IT'S NOT ONSET BEFORE AGE 18 TMAY BE SOMETHING ELSE TMAY BE SOME OTHER MENTAL ILLNESS BUT IT'S NOT MENTAL RETARDATION.
EXACTLY, YOUR HONOR.
CAN YOU DISCUSS -- BECAUSE YOU DO HAVE AN ISSUE ABOUT THE, THE STANDARD THAT SHOULD APPLY HERE, AND, AND I THINK THAT'S A SIGNIFICANT ISSUE. THE TRIAL COURT IT SEEMS TO ME CLEARLY MADE A BUOYANT OF, -- POINT OF ADOPTING THE CLEAR AND CONVINCING STANDARD UNLIKE OTHER TRIAL COURTS WHERE WE'VE HAD WHERE THEY'VE DECIDED IN THE ALTERNO CARRIER CRIMES OCCURRED A LONG TIME AGO WHERE THESE PEOPLE'S 18TH BIRTHDAY WAS IN MANY TIMES -- I MAY AGREE WITH YOU AS A MATTER OF PUBLIC POLICY IF I WERE WRITING THE STATUTE I WOULD HAVE A LOWER STANDARD OF PROOF. HOWEVER, I AM NOT A LEGISLATOR, AND SO THE QUESTION IS IS THIS STATUTE CONSTITUTIONAL? CAN YOU ADDRESS THAT? I THINK THAT MENTAL RETARDATION IS NOT A SITUATION LIKE A FORD SITUATION WHERE THERE IS, THERE'S A QUESTION OF COMPETENCY TO BE EXECUTED, AND YOU HAVE TO DETERMINE AT THE TIME THE EXECUTION IS IMMINENT WHETHER OR NOT THAT PERSON FITS THAT COMPETENCY STANDARD. MENTAL RETARDATION IS DIFFERENT, AND IT'S DIFFERENT BECAUSE IT'S MUCH MORE DIFFICULT TO DETERMINE IN THESE CAPITAL POST CONVICTION CASES, ESPECIALLY WHAT THE PERSON WAS LIKE AT THE TIME THE CRIME OCCURRED OR BEFORE THEIR 18TH BIRTHDAY. THAT'S WHY THESE CASES ARE SO DIFFICULT AND WHY THERE'S SO MUCH DIFFERENCE IN THE STATUTES AROUND THE COUNTRY. ULTIMATELY YOU CANNOT HAVE, NO MATTER WHAT THE UNITED STATES SUPREME COURT SYSTEM, YOU CANNOT HAVE 50 DIFFERENT STATES HAVE THE DEATH PENALTY WITH ENTIRELY DIFFERENT WAYS OF DETERMINING WHAT MENTAL RETARDATION IS -- WELL, ISN'T THAT PRECISELY WHAT THE COURT IN AT KINS VERSUS VIRGINIA SAID COULD BE DONE? I DON'T BELIEVE SO, YOUR HONOR. I DON'T BELIEVE THEY WERE SAYING THEY COULD COME UP WITH WHATEVER DEFINITION THEY WANT TO FOR MENTAL RETARDATION. THAT WOULD BE LIKE -- WELL, NOW YOU'RE SWITCHING FROM DEFINITION TO THE STANDARD, THE BURDEN OF PROOF. DID YOU JUST DO THAT? I THINK I PROBABLY DID. SORT OF LIKE HILLARY CLINTON, I THINK I SAID TWO THINGS AT ONE TIME. I'D LIKE TO GO BACK TO SOMETHING THAT CONCERNS ME ABOUT PHILLIPS CASE AND CERTAIN OTHERS WE'VE BEEN REVIEWING. WE'VE SEEN CASES OVER THE YEARS WHERE THE CLAIM OF MENTAL RETARDATION AND THE CLEAR ITSELF YOU KNOW, EXECUTION. AND IN THIS CASE EVEN GOING BACK TO THE 1997 OPINION OF THIS COURT REVERSED FOR THE PENALTY PHASE, IT WAS, THEY TALKED ABOUT THE COMPELLING EVIDENCE PRESENTED BY EXPERTS. WHEN IT'S CLOSE NEHR TIMES SEVEN YEARS AGO OR TEN YEARS AGO. THAT WOULD HAVE BEEN ON THE POST CONVICTION EVIDENTIARY HEARING. RIGHT. THAT HE HAD ALL THESE PERSONALITY DEFICITS. BUT CONSISTENTLY THEY NEVER FIND OR THERE'S NEVER ANY TESTIMONY ABOUT HIM BEING MENTALLY RETARDED. AND I THINK THAT FROM MY POINT OF VIEW ALTHOUGH WE ARE ALLOWING THESE CASES TO GO BACK TO GIVE ANOTHER SHOT THAT WHEN THE CLAIM THAT IS REALLY NEVER BEEN MENTAL RETARDATION AND THERE'S NO CLAIM ON POST CONVICTION THAT THEY WERE SUFFICIENT IN NOT PRESENTING IT THAT HOW BY COME ALONG HOW MANY YEARS AFTER THE CRIME? IN THIS CASE? MANY. MANY. '87 -- AND SAY NOW WE'LL LOOK AT IT AND MAYBE THERE WAS. MY QUESTION IS DON'T WE HAVE TO LOOK AT THIS CASE AND THE JUDGE'S FINDINGS IN LIGHT OF THE PRIOR TESTIMONY IN THE CASE AND THE CONSISTENT, CONSISTENCY IN THIS CASE OF NEVER BEING DEEMED TO BE MENTALLY RETARDED UNDER ANY DEFINITION? I THINK THE SHORT ANSWER TO YOUR QUESTION IS, YES, AND OF COURSE THAT'S THE REASON WE STIPULATED TO ALL THE EVIDENCE PRIOR COMING IN AT THE EVIDENTIARY HEARING. THERE IS A VERY EXTENSIVE RECORD WITH A LOT OF TESTIMONY AND THE JUDGE, TO HIS CREDIT, ALLOWED A LOT OF INFORMATION INTO THE RECORD, I THINK, FOR THIS COURT'S PURPOSES. I WOULD DISAGREE WITH YOU SLIGHTLY ABOUT THE HISTORY OF THE CASE THOUGH. I BELIEVE JOYCE'S TESTIMONY LONG AGO DID RAISE THE POSSIBILITY OF MENTAL RETARDATION. I THINK IF WE'RE TALKING ABOUT, OBVIOUSLY, AN OLD RECORD, THAT WAS PART OF THE PROBLEM WITH THIS CASE. THERE WERE INDICATORS AND RED FLAGS, THEY WERE JUST NEVER, THEY WERE NEVER RESEARCHED IN GREAT DETAIL BECAUSE, OBVIOUSLY, MENTAL RETARDATION DIDN'T HAVE THE SAME STATUS AS SORT OF SUPERMITIGATION THAT IT HAS NOW. AGAIN, AS YOU SAID, THE DOCTOR HAS A VERY LENGTHY REPORT, AND EVEN THEN IT SAY, YOU KNOW, POSSIBLY THAT HE HAS A LOW IQ. WHERE DID SHE RAISE THE POSSIBILITY THAT HE MIGHT BE MENTALLY RETARDED? I CAN'T GIVE YOU THE SITE, BUT I'LL BE HAPPY TO PROVIDE THAT, AND I'LL FILE THAT, IF YOU'D LIKE ME TO DO THAT. LET ME ASK YOU ABOUT, TO GO BACK TO THE ISSUE OF STANDARD, WHAT IS THE BURDEN OF PROOF IN THESE KINDS OF CASES, WHO DO YOU SAY HAS THE RIGHT TO DETERMINE THAT? IS IT A LEGISLATIVE ISSUE OR IS IT A JUDICIAL ISSUE? I CERTAINLY BELIEVE THAT THE FLORIDA SUPREME COURT HAS THE ABILITY TO MAKE THAT SORT OF RULE. SO YOU WOULD SAY, THEN, THAT THE BURDEN OF PROOF ISSUE IS PROCEDURAL? YES, I THINK IT IS PROCEDURAL. AND I THINK -- AND HAVE WE EVER SAID THAT IN ANY CASE THAT THE BURDEN OF PROOF IS A PROCEDURAL ISSUE? I CAN'T ANSWER THAT QUESTION, HONESTLY, YOUR HONOR. I DON'T KNOW THE ANSWER TO THAT. LET ME QUOTE YOU FROM THE SUPREME COURT DECISION DECIDED LAST YEAR ON THE ISSUE OF THE INSANITY DEFENSE AND SEE HOW YOU RESPOND TO THAT. THE COURT SAID THAT THE FORCE OF THE PRESUMPTION OF SANITY IS MEASURED BY THE QUANTUM OF ITSELF NECESSARY TO -- EVIDENCE NECESSARY TO OVERCOME IT. IT VARIES ACROSS MANY STATE AND FEDERAL JURISDICTIONS AND PRIOR LAW HAS RECOGNIZED CONSIDERABLE LEEWAY ON THE PART OF THE LEGISLATIVE BRANCH IN DEFINING THE PRESUMPTION STRENGTH THROUGH THE KIND OF EVIDENCE AND DEGREE OF PERSUASIVENESS NECESSARY TO OVER.COM IT. SO THE COURT CLEARLY GAVE STATE LEGISLATURES LEEWAY IN DEFINING AND IMPOSING A BURDEN OF PROOF FOR THE INSANITY DEFENSE. HOW WAS THIS ANY DIFFERENT? I BELIEVE McNAUGHTON AND OTHER RELATED KIND OF DEFENSES HAVING TO DO WITH SANITY ARE COMPLETELY DIFFERENT FROM MENTAL RETARDATION WHICH IS A DIAGNOSE SIS OF A CONDITION RATHER THAN A STATE OF MIND THAT WOULD EXEMPT YOU FROM CRIMINAL RESPONSIBILITY. THEY'RE TWO ENTIRELY DIFFERENT KINDS OF THINGS. OKAY, THAT'S YOUR RESPONSE? YES. WELL, IN ANSWER TO JUSTICE QUINCE' QUESTION, YOU WOULD AGREE THAT THERE ARE NUMEROUS IN THE FLORIDA STATUTE BOOKS INSTANCES IN WHICH THE LEGISLATURE HAS SET FORTH WHAT THE BURDEN OF PROOF IS? SURE. MEDICAL MALL PRACTICE AND -- YOU WOULDN'T SUGGEST THAT THIS COURT WOULD HOLD ALL OF THOSE INSTANCES UNCONSTITUTIONAL, WOULD YOU? NO, I CERTAINLY WOULDN'T DO THAT. SO WHY SHOULD WE DO IT HERE? WHY SHOULD YOU DO IT IN THIS SITUATION? RIGHT. BECAUSE THE WEIGHT OF EVIDENCE FROM AROUND THE COUNTRY IS THAT THE LOWER STANDARD OF PROOF OR RATHER THE HIGHER STANDARD OF PROOF IS IMPORTANT IN THIS SITUATION BECAUSE IT'S THE ONLY REAL WAY TO GUARANTEE PARTICULARLY IN THESE POST CONVICTION CASE THAT IS THE EVIDENCE CAN COME IN AND BE REASONABLY CONSIDERED BY THE TRIAL COURTS IN A WAY THAT GIVES THE CLIENT THE OPPORTUNITY TO GET THE RELIEF THEY DESERVE. SHOULDN'T WE -- WE'RE TALKING -- I DON'T EACH SEE YOU MEET IT UNDER THE LESSER STANDARD. I MEAN, IT SEEMS TO ME -- WELL, THAT'S CERTAINLY A DIFFERENT ISSUE. IF I THOUGHT, WELL, YOU MIGHT BE MENTALLY RETARDED UNDER ONE STANDARD BUT NOT UNDER THE OTHER, I'D START TO BE CONCERNED. BUT YOU STILL HAVE TO GET OVER THE HUMP THAT IS IT OVER 50% THAT HE'S MENTALLY RETARDED? I SEE I'VE ONLY GOT ABOUT FOUR MINUTES LEFT. I DO WANT TO RESERVE -- YOU'RE NOT GOING TO ANSWER MY QUESTION? I'LL ANSWER. ASK ME AGAIN -- SHE'S SAYING THAT IN HER VIEW IT'S PREPONDERANCE OF THE EVIDENCE. I'M SAYING ANY STANDARD, I DON'T THINK YOU'VE -- HAVE EVIDENCE THAT ESTABLISHED THAT MR. PHILLIPS IS MENTALLY RETARDED. I THAWNS THAT THAT MAY WELL BE YOUR POSITION, AND IF THAT'S THE CASE, THE COURT OBVIOUSLY DOESN'T HAVE TO REACH THAT ISSUE IN THIS CASE. MAY IT PLEASE THE COURT, SANDRA JAGGARD N ANSWER TO JUSTICE CAN TEAR ROW'S DISCUSSION, IT'S IN FACT, CONSTITUTIONAL UNDER FLOYD VERSUS ARIZONA. I DIDN'T HEAR YOU, COULD YOU JUST SAY WHAT YOU -- ON THE CLARK V. ARIZONA? LET ME ASK YOU THESE QUESTIONS, SEEMS TO ME THAT WE HAVE TO REACH THE CONSTITUTIONAL QUESTION BECAUSE THE TRIAL COURT DID NOT DECIDE THIS CASE IN THE ALTERNATIVE, AND WE CANNOT ON OUR OWN DETERMINE WHETHER THE PREPONDERANCE OF THE EVIDENCE STANDARD IS MET. WELL, ACTUALLY YOU CAN BECAUSE THEY PRESENTED NO EVIDENCE, BUT HE HAS ADAPTIVE FUNCTIONING. DR. KEYES ONLY MEASURED HIS ADAPTIVE FUNCTIONING BEFORE HE WAS 18, AND, THEREFORE, IT WOULDN'T MATTER WHAT THE STANDARD OF PROOF IS BECAUSE NO EVIDENCE DOESN'T MEET ANY OF THEM. YOU KNOW, THIS ONE ABOUT THE CURRENT DEFICIT SEEMS STRANGE TO ME. THAT IS THAT THAT'S ACTUALLY WHAT THE LEGISLATURE INTENDED BECAUSE IF THE ISSUE IS WHAT YOUR STATUS WAS AT THE TIME OF THE CRIME, AND YOU WERE, AND BETWEEN THE TIME OF THE CRIME AND THE TIME YOU WERE IN PRISON SOMETHING HAPPENED TO YOU, AND I DON'T -- AND YOU'RE NOW CURRENTLY FUNCTIONING AT A LESSER LEVEL, WHY WOULD THE LEGISLATURE WANT THAT FOREIGN ESCAPE RESPONSIBILITY THEY DIDN'T MEET THE DEFINITION OF MENTAL RETARDATION AT THE TIME OF THE CRIME? WELL, THERE ARE THREE PRONGS. THE FIRST PRONG IS THAT YOU HAVE PRESENTLY SIGNIFICANT -- BUT I DON'T -- BUT ISN'T REALLY WHAT -- I DON'T THINK THEY CONTEMPLATED THERE WOULD BE A 30-YEAR GAP BETWEEN WHEN THE CRIME WAS AND THE DETERMINATION OF MENTAL RETARDATION. I MEAN, THAT'S THE PROBLEM IS THAT IF HE MIGHT HAVE BEEN, I MEAN -- WELL, BUT THEY DIDN'T DO WHAT YOU'RE SUGGESTING THEY DID BECAUSE THE SECOND PRONG IS YOU NOW HAVE DEFICITS AND ADAPTIVE FUNCTIONING. AND THE THIRD PRONG IS ONE AND TWO EXISTED BEFORE YOU'RE 18. SO YOU HAD TO HAVE ONE AND TWO EXISTING BEFORE YOU'RE 18 ON TWO THEY PRESENTED EVIDENCE THAT HE ALLEGEDLY HAD ADAPTIVE FUNCTIONING BASED ON HAVING TO GIVE THE VINELAND IQ TEST TO HIS SISTER TWICE, GIVING THE SIBR TO HIM, AND GIVING THE SIBR TO ANOTHER DEATH ROW INMATE WHO'S BEEN COMMITTING CRIMES WITH THE DEFENDANT APPARENTLY HIS WHOLE LIFE, NORMAN PARKER. AND WHAT DR. KEYES CAME DOWN WITH WAS HE HAD DEFICITS IN ADAPTIVE FUNCTIONING BECAUSE WHENPER -- PARKER AND PHILLIPS WOULD COMMIT CRIMES TOGETHER, PHILLIPS WOULD BE SENT IN TO DOE COY THE SHOPKEEPER, AND HE COULDN'T DO A GOOD JOB. AND WHEN THEY WOULD BREAK INTO SWIMMING POOLS, PHILLIPS WOULD WEAR HIS CLOTHES INTO THE POOL, AND THEY WOULD GET CAUGHT. AND SO IT WAS JUST -- AND IT WAS ACKNOWLEDGED THAT THESE THINGS COULD HAVE HAPPENED BECAUSE HE WAS SHY, SO THEY DIDN'T EVEN REALLY PROVE THAT. AND THE ONLY I WAS ABOUT HIS HAVING -- EVIDENCE ABOUT HIS HAVING A LOW IQ BEFORE 18 WAS THAT HE HAD LOW GRADES IN SCHOOL. BUT IT WAS ACKNOWLEDGED THAT PEOPLE WHO DON'T GO TO SCHOOL AND DON'T PAY ATTENTION GET LOW GRADES IN SCHOOL, AND THIS DEFENDANT Reporter: DISBH. I GUESS WE THOUGHT THIS CASE COULD THOUGHT ON THE ISSUE THAT WE'VE ALREADY SAID THAT HIS IQ, THERE'S NO, THERE'S NOT EVEN A RANGE HERE. ALL THE IQ SCORES HAVE BEEN OVER 70. WELL, ONE WAS 70, AND THE REST WERE ALL ABOVE IT. SO WOULDN'T THAT BE -- THAT ONE FAILED, TOO, YES. THAT ONE'S FAILED, PRONG TWO HAS FAILED, AND PRONG THREE HAS FAILED BECAUSE THE JUDGE CHOSE TO BELIEVE THAT THE REASON HE DIDN'T DO WELL IN SCHOOL WAS NOT THAT HE COULDN'T HAVE, BUT THAT HE DIDN'T WANT TO. SO HE FAILED ALL THREE, AND AS FAR AS THE BURDEN OF PROOF, IT'S UNDER CLARK IT'S UP TO THE LEGISLATURES BECAUSE PART OF DEFINING THE RIGHT IS DEFINING WHAT PROOF IS NECESSARY FOR THE RIGHT. BUT THE DEFENDANT REALLY ARGUES HERE THAT THAT IS A DIFFERENT CASE. THAT SANITY AND RETARDATION ARE REALLY DIFFERENT ISSUES. AND WE'RE TALKING ABOUT A SITUATION WHERE A PERSON CANNOT EVEN GET THE DEATH PENALTY IF THEY ARE, IN FACT, MENTALLY RETARDED. AND SO WHY SHOULDN'T THERE BE THE LOWER STANDARD THAT MOST OF THE STATES THAT HAVE THESE DEATH PENALTIES HAVE ACCEPTED? THE PREPONDERANCE OF THE EVIDENCE? BECAUSE THE FLORIDA LEGISLATURE HASN'T, AND IT'S NOT UNCONSTITUTIONAL FOR THEM NOT TO, AND IT'S THEIR JOB. AND SO IS IT YOUR POSITION THAT THIS IS A SUBSTANTIVE -- IT'S PART OF DEFINING WHAT IT MEANS TO BE RETARDED IS DEFINING HOW MUCH EVIDENCE YOU NEED TO PUT ON TO DO THAT. UNDER CLARK THE TEST FOR WHETHER IT'S UNCONSTITUTIONAL IS WHETHER THE RIGHT IS SO DEEPLY ROOT INSIDE OUR HISTORY TO BE DEEMED FUNDAMENT 58, AND THEY ALSO LOOK AT WILL IT ALLOWS THE DEFENDANT TO ESCAPE CUSTOMARY RESPONSIBILITY OR SIMPLY DELAYS A TRIAL. HERE THE RIGHT NOT TO BE EXECUTED IS CERTAINLY NOT ROOTED IN OUR HISTORY, IT DIDN'T ECONOMIST BEFORE FIVE YEARS AGO. IT DOES ALLOW A DEFENDANT, IT'S A DEFENSE TO THE DEATH PENALTY TO SAY YOU'RE RETARDED, AND, THEREFORE, IT'S NOT LIKE COOPER. IT IS A DEFENSE, IT'S LIKE EVERY OTHER DEFENSE WHETHER IT'S TO A CRIME OR TO A PENALTY. AND IT'S CONSTITUTIONAL. THE COURT HAS NO OTHER QUESTIONS, THE STATE RESPECTFULLY REQUESTS -- I HAVE ONE. OKAY. FOR INFORMATION PURPOSES, YOU KNOW, THE STATUTORY SCHEME REFERRED EXTENSIVELY TO THE STANDARDS IN THE RULES FOR THE AGENCY FOR PERSONS WITH DISABILITIES. YEAH. IS THERE A SET OF THOSE RULES IN THIS RECORD -- IT'S ONLY ONE RULE, AND THE RULE IS -- IS THE RULE -- I DON'T THINK THE RULE WAS CITED IN YOUR BRIEF. AND SO IS -- THE RULE SAYS -- AND IS THE RULE A PUBLIC RECORD, YOU KNOW -- YES. I CAN CERTAINLY SUBMIT IT TO YOUR HONOR, IF IT'S NOT. I BELIEVE IT WAS SUBMITTED IN THE EVIDENTIARY HEARING, IT IS IN THE RECORD, BUT IF IT'S NOT, I WILL CERTAINLY SUBMIT IT TO YOU. WHAT IT SAYS IS THE TRIAL COURTS TO USE ANY OTHER TEST THAT IS SHOWN TO HAVE BEEN, I BELIEVE IT'S INDIVIDUALLY ADMINISTERED AND PROPERLY NORMED. YOU'RE FAIRLY CONFIDENT THAT THERE'S A COPY OF THAT RULE IN THE RECORD? I DO BELIEVE IT WAS ADMITTED AS AN EXHIBIT. IF IT'S NOT, AND I WILL OVERVIEW THE RECORD, I WILL CERTAIN -- THANK YOU. DID THE STATE MAKE ANY ARGUMENT AT THE EVIDENTIARY HEARING THAT THE TEST ADMINISTERED REALLY WAS AN APPROPRIATE TEST UNDER THE STANDARD THAT YOU JUST DEFINED, AND WAS THAT REJECTED BY THE TRIAL COURT? THE TRIAL COURT DECIDED THAT IT WOULD NOT CONSIDER IT BECAUSE IT WASN'T -- WE DID ARGUE THAT IT DID MEET THE THIRD CATCHALL. BUT IT DOESN'T MATTER BECAUSE THE DOCTOR GAVE HIM THE -- IN '88, DR. KEYES GAVE IT TO HIM IN '03, AND D. CADDY IN 2005. THE JUDGE CHOSE TO BELIEVE THAT DR. CADDY AND DR. KEYES WEREN'T CRED FOOTBALL THEIR TESTING BECAUSE THEY HADN'T DONE TESTING OF MALINGERING AND HAD IGNORED THE CRIME, AND THE OWN EXPERT THAT WAS FOUND CREDIBLE CAME UP WITH A 75. COURT HAS NO FURTHER QUESTIONS, THE STATE RESPECTFULLY REQUESTS YOUR -- COUNSEL, DO YOU AGREE THAT THIS RULE IS PROBABLY IN THE RECORD? MY RECOLLECTION WAS THAT IT WAS A PART OF THE RECORD, YOUR HONOR. YOU'VE NEVER MADE ANY ATTACK ON THE AUTHORITY OF THE LEGISLATURE TO DELEGATE TO THIS AGENCY, HAVE YOU? THESE TESTS, IT STRIKES ME THAT POTENTIALLY, YOU KNOW, THERE MIGHT BE AN ISSUE AS TO WHETHER WE'RE TALKING ABOUT A MOVING TARGET, THAT IS THAT THIS YEAR THE AGENCY SAYS THAT THESE ARE THE TESTS AND, YOU KNOW, AND AS WITH ALL AREAS OF SCIENCE THE THINGS EVOLVE AND THE PEER GROUPS DECIDE THAT WE CAN HAVE A BETTER TEST, WHATEVER. YOU'VE NEVER MADE ANY ATTACK, THOUGH, ON THE BASIS -- NOT BASED ON THE IQ TEST. DETERMINE WHAT THE TESTS ARE AND THAT THAT CAN CHANGE. NO, WE REALLY HAVEN'T. ONE OF THE INTERESTING THINGS ABOUT THIS CASE AND ABOUT THE RULES ARE THOSE ARE THE ONLY TWO TESTS THAT ARE MENTIONED. THERE ARE NO REQUIREMENT, FOR THE TESTING ABOUT ADAPTIVE FUNCTIONING, THERE ARE NO REQUIREMENTS FOR MALINGERING TESTS IN THE STATUTE, THERE ARE NO OTHER TESTING REQUIREMENTS WHATSOEVER. PART OF THE PROBLEM WE HAVE IN THIS CASE IS THAT, I BELIEVE, THE STATE HAS CORRECTED THE FIRST TIME YOU RAISED THIS ISSUE WAS IN YOUR REPLY BRIEF, IS THAT RIGHT? ARE YOU TALKING ABOUT THE -- THE CONSTITUTIONALITY. THE CONSTITUTIONALITY ISSUE? OF THE BURDEN OF PROOF. I DON'T BELIEVE THAT'S THE CASE, YOUR HONOR. DID YOU -- I THINK IT WAS POST EVIDENTIARY HEARING. YOU KNOW, AFTER THE EVIDENTIARY HEARING IT WAS CERTAINLY RAISED IN THE 3850 AND THE EVIDENT EVIDENTIARY HEARING, ALTHOUGH I DON'T BELIEVE THERE WAS ANY EVIDENCE PUT ON ABOUT IT, AND THEN OF COURSE THE JUDGE MADE FINDINGS ABOUT IT IN HIS -- YOU GO AHEAD. YOU FINISH UP. THE TESTING WE TALKED ABOUT EARLY ON, I REALLY WANT TO POINT OUT TO THE COURT THAT YOU SHOULD CONTRAST THE JUDGE'S FINDINGS ABOUT THE IQ TEST WITH HIS FINDINGS ABOUT THE VALIDITY TESTING AND ADVERTISE FINDINGS ABOUT THE ABBAS WHICH DR. SUAREZ GAVE BECAUSE THE FACT THAT WERE PRESENTED TO THE JUDGE WERE THAT MR. PHILLIPS PASSED THE TEST OF MALINGERING, HE WAS NOT MALINGERING. THAT ON THE VIP, THE MEMORY 15 ITEM TEST THERE WERE GRAVE PROBLEMS WITH DR. SUAREZ'S ADMINISTRATION OF THOSE TESTS. THE JUDGE'S ORDERED IGNORES THOSE, AND 80% OF THE QUESTIONS ANSWERED BY THE PEOPLE WHO TOOK THAT ABBAS INSTRUMENT FOR ADAPTIVE FUNCTIONING WITH DR. SUAREZ WERE GUESSES. AND DR. SUAREZ COMMITTED COMMITTED -- ADMITTED THAT, AND YET THAT'S THE BASIS HE MADE HIS FINDINGS THAT THERE WERE NO ADAPTIVE DEFICITS. LET ME ASK YOU THIS, THOUGH. YES. IF WE HAVE VARIOUS IQ TESTS, ONE IS 70, THE OTHER THREE OR FOUR ABOVE 70 -- UH-HUH. WE HAVE EVIDENCE OF THAT HE ADAPTS WELL, THAT HE PLANS THESE CRIMES AND ALL OF THIS KIND OF THING. SO EVEN IF WE WENT WITH THE 70IQ, HOW DO WE GET AROUND THE OTHER FACTORS THAT YOU HAVE TO CONSIDER WHICH IS ONSET BY THE AGE OF 18 AND DEFECTS IN ADAPTIVE FUNCTIONING? WELL, I BELIEVE THE DEFENSE EXPERTS DID PROVIDE GOOD EVIDENCE OF DEFECTS IN ADAPTIVE FUNCTIONING, AND I BELIEVE THAT IF YOU ACCEPT THE PATH THAT YOU SEEM TO BE TALKING ABOUT, IF ONE ADAPTS TO THE MAXIMUM SECURITY PRISON SET ANYTHING FLORIDA DETERMINED BY THE RESPONSES ON THIS ABBAS TEST THAT DR. SUAREZ GAVE TO PRISON GUARDS, ONE CAN NEVER BE MENTALLY RETARDED. WHAT DO WE DO WITH THE OTHER INFORMATION ABOUT HIS PLANNING OF THESE CRIMES AND THAT OTHER KIND OF INFORMATION THAT SHOWS HIS ADAPTING WHEN HE'S OUT IN THE REAL WORLD? WELL, I THINK WE PRESENTED EVIDENCE TO SHOW THAT THE DEFINITIONS OF MENTAL RETARDATION DON'T ANTICIPATE THAT THERE WON'T MALL ADAPTIVE BEHAVIOR OR ANTISOCIAL BAYER BY PEOPLE -- BEHAVIOR WHO ARE MENTALLY RETARDED. I THINK TO THE EXTENT THERE WAS EVIDENCE PUT ON OF SOPHISTICATED PLANNING, YOU REALLY NEED TO LOOK TO THE THE ENTIRE RECORD AND LOOK TO COMMENTS MADE BY THE DEFENSE EXPERTS, IN THIS CASE, ABOUT THAT PLANNING. EVEN THOUGH THE ENTIRE RECORD OF THE PREVIOUS CASE CAME IN FOR PURPOSES OF THE COURT'S EVALUATION, WE DIDN'T REALLY HAVE A RETRIAL OF EVERYTHING THAT HAPPENED BEFORE SYSTEM AND CERTAINLY ALL THE SNITCH WITNESSES AND ALL THE CONTRARY INFORMATION THAT WAS PUT ON AT THE EVIDENTIARY HEARING REFERRED TO BACK IN THE LATE '90s -- '80s CONTRADICTS A LOT OF THAT INFORMATION. IF YOU LOOK AT IT ALL TOGETHER, I THINK YOU'LL SEE THE STORY IS CONSIDERABLY DIFFERENT, AND I THINK IF YOU'RE DOING REVIEW ON THE LAW, THAT YOU NEED TO DO THAT. FINALLY, I'D JUST LIKE TO SAY THAT YOU NEED TO LOOK AT THE POSSIBILITY THAT YOUR EVALUATION OF THE JUDGE'S FINDINGS IN THIS CASE WERE CLEARLY ERRONEOUS BECAUSE I THINK WHAT HAPPENED HERE IS THAT HE LOOKED SOLELY TO DR. SUAREZ'S TESTIMONY AND REPORTS ABOUT VALIDITY TESTING WHERE THERE WAS NONE DONE BY THE DEFENSE EXERT PERTS AND RELIED ON THAT TO THE EXCLUSION OF EVERYTHING. I THINK BECAUSE OF THAT YOU COULD -- I THINK IF YOU LOOK AT THE TESTIMONY AND THE IMPEACHMENT OF ALL THE VALIDITY TESTS, YOU'LL SEE THEY REALLY HAVE NO VALIDITY AND THAT THE COURT'S RELIANCE ON THAT WAS AN ABUSE OF DISCRETION AND IT WAS ALSO CLEARLY ERRONEOUS BECAUSE HE WAS RELYING ON ERRONEOUS FACTS REVEALED BY THE RECORD. WITH THAT AND OUR HELP, WE'VE USED UP ALL YOUR TIME. WE THANK YOU BOTH, WE'LL TAKE THE CASE UNDER ADVISEMENT. COURT WILL STAND IN RECESS UNTIL 9:00 TOMORROW MORNING. ALL RISE.