GOOD MORNING. THE CASE WE ARE HERE TO HEAR ORAL ARGUMENT IN, THIS MORNING, IS BOTTOSON VERSUS STATE AND BOTTOSON VERSUS MOORE. MR. CANNON. YOU MAY PROCEED.

MR. CHIEF JUSTICE, ASSOCIATE JUSTICES, MY NAME IS PETER CANNON, AND I REPRESENT MR. BOTTOSON. MAY IT PLEASE THE COURT. THERE IS A MOVEMENT TODAY THAT BEGAN OVER A DECADE AGO, WHEN THE UNITED STATES SUPREME COURT DECIDED THE PENURY DECISION. -- THE PENRY DECISION. SINCE THAT TIME, STATE AFTER STATE, LEGISLATURE AFTER LEGISLATURE, FROM GEORGIA TO TENNESSEE, FROM KANSAS TO NEW YORK, HAS DECIDED TO REMOVE THE MENTALLY-RETARDED FROM THOSE CLASSES OF INDIVIDUALS WHO ARE DEATH-ELIGIBLE.

DID YOU HAVE AN EVIDENTIARY HEARING ON THE ISSUE OF WHETHER YOUR CLIENT IS MENTALLY RETARDED  RETARDED?

WE DID HAVE AN EVIDENTIARY HEARING, YES, JUSTICE ANSTEAD.

AND DID THE TRIAL COURT MAKE A DETERMINATION?

HE, THE TRIAL COURT DID MAKE A DETERMINATION THAT IS IN THEIR ORDER. HOWEVER, IT IS OUR CONTENTION THAT THAT WAS NOT A PROPER DETERMINATION OF RETARDATION, UNDER THE STATUTE 921.137.

SO IT IS YOUR CONTENTION THAT THE STATUTE APPLIES, AND THAT THE TRIAL COURT'S FACTUAL DETERMINATIONS ARE IN VIOLATION OF THE STATUTE, OR THAT THEY ARE NOT SUPPORTED BY THE EVIDENCE?

IN VIOLATION OF THE STATUTE. CORRECT.

NOW, FIRST OF ALL, WOULD YOU ADDRESS THE ISSUE OF WHETHER OR NOT THE STATUTE APPLIES.

YES. WE WOULD ARGUE THAT THE STATUTE DOES APPLY, UNDER BOTH THE FLORIDA CONSTITUTION AND THE FEDERAL CONSTITUTION.

YOU AGREE THAT FACIALLY, THE STATUTE, ITSELF, SAYS THAT IT DOES NOT APPLY.

SECTION A, CORRECT.

I MEAN, IS THAT CORRECT?

THAT'S CORRECT. FACIALLY IT DOES NOT APPLY. HOWEVER, IT IS OUR CONTENTION THAT THAT SECTION EIGHT IS UNCONSTITUTIONAL.

WOULD YOU GO RIGHT TO THE ISSUE OF WHAT THE STANDARDS ARE IN THE STATUTE, AND HOW THE TRIAL COURT ERRED, ASSUMING THAT IT APPLIED THE STANDARDS THAT ARE IN THE STATUTE, ON THE EVIDENCE AND THE FACTS THAT WERE PRESENTED THAT THE HEARING. WHAT ARE THE STANDARDS IN THE STATUTE?

THE STANDARDS FOR MENTAL RETARDATION, JUSTICE ANSTEAD, ARE LAID OUT IN THE STATUTE. HOWEVER, THE DEPARTMENT OF CHILDREN AND FAMILIES IS REQUIRED TO PASS RULES AND REGULATIONS. THEY ARE REQUIRED TO PROMULGATE RULES DESIGNED TO GIVE THAT STATUTE EFFECT. THEY HAVE YET TO DO. THAT THEY HAD 180 DAYS, AND THEY HAVE YET TO PASS THAT. THOSE RULES. IN ADDITION, THE STATUTE, ITSELF IS VAGUE. ALL THREE EXPERTS TESTIFIED THAT BECAUSE THE DEPARTMENT OF CHILDREN AND FAMILIES HAS NOT PROMULGATED ANY RULES, THAT THEY WERE NOT ABLE TO MAKE A DETERMINATION OF MENTAL RETARDATION, BASED ON THAT STATUTE. THE TRIAL COURT, AT THE VERY BEGINNING, CLEARLY IN THE RECORD AT THE HUFF HEARING AND PRIOR TO THE HEARING, DECLARED WE DON'T KNOW WHAT THE RULES ARE. WE DON'T KNOW WHAT MENTAL RETARDATION IS, AND THAT IS THE POSITION THAT WE WERE IN, GOING INTO THE EVIDENTIARY HEARING.

I AM HAVING SOME DIFFICULTY UNDERSTANDING YOUR POSITION, BECAUSE ON THE ONE HAND, YOU ARE SAYING THAT YOU PROVED THAT YOUR CLIENT WAS MENTALLY RETARDED, UNDER STANDARDS SET OUT IN THE STATUTE, AND THAT THE TRIAL COURT ERRED IN CONCLUDING OTHERWISE, AND NOW, IF I UNDERSTAND IT CORRECTLY, YOU ARE SAYING THAT THERE AREN'T ANY STANDARDS IN THE STATUTE THAT ARE CLEAR ENOUGH FOR YOU TO DEMONSTRATE A CASE OF MENTAL RETARDATION. NOW, THERE IS SOMETHING I AM MISSING.

I DO APOLOGIZE. YOU ARE CORRECT. IT IS SOMEWHAT CONFUSING. PERHAPS THE BEST WAY TO PUT IT IS, UNDER 921.137 OR AT THE EVIDENTIARY HEARING, THERE WAS NOT A PROPER JUDICIAL DETERMINATION OF MENTAL RETARDATION. WE HAD AN EXPERT, AND HE GAVE US A GOOD FAITH BASIS TO SAY THAT MR. BOTTOSON WAS MENTALLY RETARDED. HOWEVER, UNDER THE STATUTE, WE COULD NOT PROCEED. WE OBJECTED PRIOR TO THE EVIDENTIARY HEARING AND STATED WE HAVE NO RULES, WE HAVE NO GUIDELINES. IT WOULD BE IMPOSSIBLE FOR US TO PROCEED UNDER 921.137, TO GO AHEAD AND PROVE THAT MR. BOTTOSON WAS MENTALLY RETARDED.

LET ME JUST SORT OF ASK YOU A QUESTION AS TO WHAT MY PROBLEM IS, THE HURDLES THAT YOU HAVE TO GET OVER. YOU ARE ASSERTING THAT THE STATUTE THAT THE LEGISLATURE PASSED SHOULD BE RETROACTIVELY APPLIED, AND THAT ISSUE SHOULD BE BEFORE US, BUT IN THIS CASE, WE HAVE SEVERAL CASES OF DEFENDANTS ON DEATH ROW, WHERE THERE WAS EVIDENCE AT THE ORIGINAL TRIAL THAT THEY WERE MENTALLY RETARDED, AND THEN THERE WAS REJECTION OF A CLAIM THAT THEY WERE NOT ELIGIBLE FOR THE DEATH PENALTY. THIS CASE IS NOT THAT CIRCUMSTANCE. WAS THERE ANY EVIDENCE AT THE ORIGINAL TRIAL, THAT MR. BOTTOSON WAS MENTALLY RETARDED? WAS THAT FOUND AS A NONSTATUTORY MITIGATOR, AND IF YOU COULD ADDRESS THAT FOR ME.

I AM SORRY, JUSTICE PARIENTE. THERE WERE NO MENTAL MITIGATORS FOUND AT THE ORIGINAL TRIAL. NONE WHATSOEVER.

WHAT WAS THE EVIDENCE OF HIS, WAS THERE ANY EVIDENCE PRESENTED AT TRIAL, OF MENTAL RETARDATION?

NONE WHATSOEVER.

WHAT WAS THE EVIDENCE AT TRIAL CONCERNING HIS FUNCTIONING  FUNCTIONING?

NONE.

WAS THERE ANY EVIDENCE THAT HE HAD BEEN FUNCTIONING AT A LESS THAN APPROPRIATE, AGE AGE-APPROPRIATE STATUS?

NONE. IT WAS --

SO WHY ISN'T THIS, WHY DON'T YOU HAVE TO GET OVER THE HURDLE THAT SHOI THIS IS -- THAT SOMEHOW THIS IS EITHER I NEWLY -- THAT THIS IS EITHER NEWLY-DISCOVERED EVIDENCE OR WHY WOULDN'T YOU HAVE TO PRESENT EVIDENCE AT THIS STAGE? IN THE TRIAL OR POSTCONVICTION OR MOTIONS SUBSEQUENT, WHY DIDN'T YOU SAY HE WAS MENTALLY RETARDED AND STILL HAVE THAT AS ADDED EVIDENCE TO BE PRESENTED TO THE JURY.

CORRECT. WELL, TO THE JURY?

AND TO THE JUDGE. EITHER.

TO THE JURY. CORRECT. I WOULD RESPECTFULLY SAY THAT THAT, WHAT CAME OUT OF THE ORIGINAL TRIAL IS PROBABLY NOT ANYWHERE CLOSE TO WHAT MR. BOTTOSON IS. THERE WAS EVIDENCE OF SCHIZOPHRENIA THAT WAS PRODUCED AT THE ORIGINAL 3.850 HEARING, WHICH WAS NEVER FOLLOWED-UP UPON.

SO YOUR POSITION SHOULD BE THAT EVERYBODY WHO IS ON DEATH ROW AND HAS RECEIVED A DEATH SENTENCE SHOULD BE ABLE TO COME BACK, NOW, AND GO THROUGH A HEARING FOR MENTAL RETARDATION, WHETHER THERE IS ANY INDICATION IN THE RECORD THAT THEY WERE EVER CONSIDERED TO BE MENTALLY RETARDED?

I THINK, EXCUSE ME, I WOULD SUBMIT THAT THE PROCEDURE IN GEORGIA WOULD BE INSTRUCTIVE. IT IS SORT OF LIKE A GOOD-FAITH BASIS, A GENERAL ISSUE OF MENTAL RETARDATION WAS RAISED.

NOW, THEN, YOU GET OVER THE HURDLE, AS JUSTICE ANSTEAD SAID. WE HAD AN EVIDENTIARY HEARING. THE JUDGE EVIDENTLY HEARD YOUR EVIDENCE AND REJECTED ANY INDICATION THAT MR. BOTTOSON IS MENTALLY RETARDED OR WAS MENTALLY RETARDED OR CONTINUES TO BE MENTALLY RETARDED.

CORRECT. WE DID NOT HAVE A FAIR HEARING UNDER 921.137. IT WAS IMPOSSIBLE TO HAVE A FAIR HEARING UNDER 921.137. CASE IN POINT, UNDER THAT SECTION, WHICH WOULD BE DONE AT THE TRIAL LEVEL, BY THE TRIAL ATTORNEYS, THE CAPITAL ATTORNEYS TRYING THE CASE, THEY WOULD BE REQUIRED TO HAVE EXPERIENCE. I DON'T HAVE EXPERIENCE. IN TRYING CAPITAL CASES, THE RULES OF THIS COURT MANDATE THAT THE PERSON WHO PUTS ON THIS EVIDENCE OF MENTAL RETARDATION HAVE THE REQUIREMENTS OF 3.112. I HAVE THE EXPERIENCE FOR CAPITAL CLIENT REPRESENTATIVE, BUT I DON'T HAVE THE EXPERIENCE WHO -- THE EXPERIENCE TO DO SUCH CASES, BUT UNDER THE RULES OF THIS COURT, THEY AREN'T FOLLOWED.

AREN'T YOU GOING FAR AFIELD, NOW, WHEN YOU ARE OUT IN PERIPHERAL ISSUES WITH REGARD TO MENTAL RETARDATION. REFRESH MY MEMORY. DID THE TRIAL COURT CONCLUDE HERE THAT, REGARDLESS OF THE STANDARDS APPLIED, THAT IS THE STANDARD UNDER THE STATUTE OR SOME PREVAILING STANDARD OUT THERE IN THE MEDICAL COMMUNITY, THAT MENTAL RETARDATION WAS NOT ESTABLISHED IN THIS CASE UNDER ANY VIEW OF THE STANDARDS. HELP ME. I AM NOT, IS THAT WHAT THE TRIAL COURT CONCLUDED?

THE TRIAL COURT INCORRECTLY APPLIED THE LAW. IT HAD NO GUIDANCE, WITH THAT RESPECT, AND BECAUSE --

IS THAT WHAT THE TRIAL COURT WORDED IT OR PHRASED IT? THAT IS THAT, REGARDLESS OF WHAT STANDARD, WHETHER IT IS A STANDARD SET OUT IN THE STATUTE OR A STANDARD FROM OUT THERE IN THE MEDICAL COMMUNITY, THAT IN THIS INSTANCE, UNDER THE PROOF AS HE FOUND IT, THAT MENTAL RETARDATION DOES NOT EXIST?

THE TRIAL COURT, WE WOULD SUBMIT, DID NOT EVEN FOLLOW THE STANDARD, THE BARE STANDARD IN THE STATUTE. THE STATUTE POINTS TO ONSET BEFORE THE AGE OF 18. BOTH EXPERTS, ONE OF WHICH WE CALLED, DR. McCLAREN AND DR. PRICHARD SAID THAT IS NOT IMPORTANT, THE RELEVANT ONSET BEFORE THE AGE OF 18, WHERE THE LEGISLATURE SPECIFICALLY SAID THIS IS RELEVANT EVIDENCE IN DETERMINING WHETHER THERE IS MENTAL RETARDATION OR NOT. ALSO INSTRUCTIVE IS THERE ARE STATES AROUND THE COUNTRY THAT DON'T HAVE THAT REQUIREMENT OF ONSET, WHEREAS THE STATE OF FLORIDA, THROUGH THE LEGISLATORS DECIDE, YES, THAT IS IMPORTANT.

I AM SORRY. JUSTICE ANSTEAD. MR. CHIEF JUSTICE

BEFORE WE USE UP ALL YOUR TIME, EXPLAIN TO ME WHERE YOU STAND IN RESPECT TO RAISING AN AND APPREHENDRY ISSUE. -- AN APRENDI ISSUE. THAT WAS RAISED AT WHAT POINT IN TIME?

HABEAS, YOUR HONOR.

THE RECENT HABEAS, THAT YOU FIRST RAISED ANY QUESTION AS TO THE FLORIDA PROCEDURE AS TO SENTENCING.

CORRECT.

THE APRENDI ISSUE?

WHAT I SEE IN THE REPLY BRIEF AS AN APRENDI ISSUE.

YES. THE FIRST TIME HABEAS, CORRECT.

WHAT IS THE SUBSTANCE OF YOUR ARGUMENT THERE, IN RESPECT TO THIS PARTICULAR SENTENCING?

I THINK THE ARGUMENT THAT WE WOULD PUT FORTH TO THIS COURT HAS BEEN THE ARGUMENT THAT HAS BEEN CONSISTENT, CONSISTENTLY BEEN PUT FORTH BEFORE THIS COURT IS THAT, WHEN SOMEONE IS SENTENCED AT TRIAL, THEY ARE SENTENCED TO LIFE. THE PENALTY PHASE IS AN AGGRAVATOR. AND BECAUSE OF THAT, AND IT IS NOT PROVEN IN ACCORDANCE TO APRENDI, IT VIOLATES APRENDI. THAT IS THE SUBSTANCE OF OUR ARGUMENT, AND I THINK IT IS THE ARGUMENT THAT WE HAVE BEEN MAKING CONSISTENTLY WITH REGARD TO THAT ISSUE, THAT THE PENALTY PHASE, THE AGGRAVATORS AND THE MITIGATORS, EVERYTHING THAT HAS TO BE PROVEN AND SO FORTH, HAS TO GO TO A JURY. AND NOT TO THE JUDGE.

WHAT I AM GETTING AT IS, PRIOR TO THIS PRESENT HABEAS, WAS THAT ISSUE EVER PRESENTED TO AT ALL, AS TO AN ATTACK ON THE FLORIDA SENTENCING PROCEDURES?

NOT IN THAT MANNER. MR. CHIEF JUSTICE, PERHAPS THERE WERE SOME OTHER MOTIONS FILED FOR MOTIONS, BUT NOT IN THAT MANNER.

AS A SORT OF FOLLOW-UP TO THAT, WHAT DO YOU CONTEND IS WHAT DID THE SUPREME COURT SAY IN APRENDI? WHAT ARE WE REALLY LOOKING AT AND WHAT DO YOU CONSIDER TO BE THE MAXIMUM SENTENCE? BECAUSE AS I UNDERSTAND APRENDI, IF YOU ARE GOING TO USE SOMETHING OTHER THAN THE DEFENDANT'S PRIOR RECORD, TO IMPOSE A SENTENCE BEYOND THE MAXIMUM SENTENCE, THEN THAT, THOSE ITEMS HAVE TO BE PRESENTED TO A JURY. IS THAT YOUR UNDERSTANDING OF APRENDI?

YES, JUSTICE QUINCE, ABSOLUTELY.

SO WHAT IS THE MAXIMUM SENTENCE IN THIS PARTICULAR CASE?

IN THIS PARTICULAR CASE, PERHAPS --

OR THE FLORIDA DEATH PENALTY SCHEME?

I THINK IT RAISES SOME CONCERNS, WITH REGARD TO FLORIDA'S DEATH PENALTY SCHEME AT THIS POINT. BECAUSE THE SENTENCE HAS TO GO TO A JURY, TAN DID NOT. -- AND IT DID NOT. SO I AM NOT SURE WHAT THE SUPREME COURT WOULD SAY. HOWEVER, I THINK THE PAST IS INSTRUCTIVE, AND PERHAPS A LIFE SENTENCE. OR MR. BOTTOSON.

WOULD YOU COMMENT ON YOUR PET SCAN OR SPEC SCAN ISSUE THAT YOU HAVE RAISED? WOULD YOU TELL US WHAT THE UNDERLYING CLAIM IS THAT THIS RELATED TO, AND WHAT EFFECT THAT WOULD HAVE ON MR. BOTTOSON'S STATUS? <$$?.

STARTING AT THE END OF YOUR QUESTION, JUSTICE ANSTEAD, I THINK WHAT IT WOULD DO IS IT WOULD GIVE AN OVERALL PICTURE OF MR. BOTTOSON'S BRAIN.

WHAT IS YOUR CLAIM HERE? THAT IS YOU ARE SEEKING THIS ADDITIONAL MEDICAL EVALUATE I HAVE TEST OR -- EVALUATIVE TEST, OR WHAT ARE YOU SAYING? IF WE HAD THIS TEST TAN COMES OUT AND IT SHOWS SOME EVIDENCE -- THIS TEST, AND IT COMES OUT AND IT SHOWS SOME EVIDENCE OF BRAIN DAMAGE, THAT MEANS WHAT, IN TERMS OF AFFECTING? DOES THAT MEAN THAT HE COULDN'T BE CONVICTED OF FIRST-DEGREE MURDER? DOES IT MEAN THAT HE COULDN'T BE SENTENCED TO DEATH? WHAT IS THE UNDERLYING CLAIM THAT THAT RELATES TO?

WE WOULD SUBMIT THAT THIS IS SOMETHING THAT IS APPROPRIATE FOR THE JURY. THE JURY NEVER GOT TO SEE THIS EVIDENCE. THERE WAS NO MENTAL MITIGATION AT ALL PRESENTED. WE ARE NOT ASKING --

BUT ISN'T THAT RELATED TO THE PRIOR CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL? WHICH IS, WAS OBJECTED BY THE TRIAL COURT AND THEN AFFIRMED BY THIS COURT.

THAT IS WHY IT IS A NEWLY-DISCOVERED EVIDENCE CLAIM. IT IS, I DON'T THINK THEY HAD THE BENEFIT OF THAT EVIDENCE. AND THAT IS WHY WE THINK IT IS IMPORTANT.

BUT THE NEWLY-DISCOVERED EVIDENCE PART OF IT IS YOU ARE SAYING THAT THERE MIGHT BE SOME NEW EVIDENCE OUT THERE, IF THE SPEC SCAN SHOWED SOMETHING. OKAY. IT IS NOT NEWLY-DISCOVERED EVIDENCE THAT YOU HAVE. IT IS JUST IF YOU LET ME HAVE THIS EXAMINATION, MAYBE THERE MIGHT BE SOMETHING THERE. IS THAT WHAT --

I UNDERSTAND YOUR CONFUSION ON THAT. WE HAVE A GOOD-FAITH BASIS, BASED ON TWO DOCTORS THAT MR. BOTTOSON DOES HAVE BRAIN DAMAGE. HOWEVER, BOTH HAVE INDICATED THAT, BECAUSE OF HIS PAST HISTORY AND PAST MEDICAL REPORTS THAT IT WOULD BE BEST, THE STANDARDS OF CARE IN THE COMMUNITY WOULD REQUIRE, AT THIS POINT, A PET SCAN OR A SPEC SCAN AND WE WERE PROHIBITED FROM PRESENTING. THAT WE WERE PROHIBITED FROM TRYING TO GET A SPEC SCAN. WE WERE PROHIBITED FROM TRYING TO EVEN PROVE A PRIMA FACIE CASE UNDER SUAVEORD, FOR OUR EVIDENTIARY -- FOR SWAFFORD, FOR OUR EVIDENTIARY HEARING, BASED ON THE COURT'S RULING.

YOU ARE WELL INTO YOUR REBUTTAL TIME.

YES. THANK YOU. MR. CHIEF JUSTICE

MR. NUNNELLEY.

MAY IT PLEASE THE COURT. I AM KEN NUNNELLEY. I REPRESENT THE STATE OF FLORIDA IN THIS PROCEEDING. IF I COULD START AT THE END OF MY OPPONENT'S ARGUMENT AND ADDRESS THE APRENDI COMPONENT, THE APRENDI ISSUE IS PROCEDURALLY BARRED AT THIS POINT IN THIS PROCEEDING. IT HAS NEVER, EVER BEEN RAISED BEFORE. THIS COURT MUST ENFORCE THE PROCEDURAL BAR RULES THAT ARE REGULARLY ENFORCED, REGULAR RARL APPLIED AND HAVE EXISTED FOR YEARS IN ADDRESSING THE APRENDI CLAIM. THE REASON I SAY THAT SO STRONGLY IS THIS. LAST WEEK, THE UNITED STATES SUPREME COURT RELEASED A CASE TITLED LEE VERSUS KIM. THE SUPREME COURT CASE NUMBER IS 006933, AND IN THAT CASE, THEY STRUCK DOWN A STATE SUPREME COURT'S FINDING OF PROCEDURAL BAR, FINDING THAT IT WAS NOT REGULARLY ENFORCED. IN THIS CASE, THE APRENDI ISSUE COULD HAVE BEEN RAISED AT THE VERY LATEST, ON DIRECT APPEAL, AND IT WAS NOT.

WHEN WAS APRENDI DECIDEDED?

APRENDI WAS DECIDED IN 2000, WHICH GIVES RISE TO YET ANOTHER PROCEDURAL BAR, WHICH IS THIS. THIS CLAIM HAS BEEN AROUND FOR ALMOST -- THE APRENDI DECISION HAS BEEN AROUND FOR TWO YEARS. IT COULD HAVE BEEN RAISED IN A TIMELY FASHION, AFTER THE RELEASE OF APRENDI, BUT APRENDI IS NOT NEW LAW. APRENDI IS, I DON'T WANT TO GO AS FAR AS CALLING IT A REFINEMENT, BUT APRENDI IS THE MOST RECENT CASE DEALING WITH THE SORT OF CLAIM CONTAINED WITHIN IT, AND A FACT THAT A CASE IS DECIDED THAT MAY MAKE IT EASIER FOR COUNSEL TO RAISE A CLAIM, DOES NOT MEAN THE CLAIM COULD NOT HAVE BEEN RAISED, AND I WOULD SUGGEST TO THE COURT THAT THIS CLAIM HAS BEEN AROUND SINCE PROPHET.

WHAT HAPPENED TO THE APRENDI ISSUE AND DECISION, ITSELF, AFTER THE DECISION BY THE U.S. SUPREME COURT IN APRENDI. WAS IT APPLIED BY THE FEDERAL COURTS AFTER THAT? OR WERE THERE PROCEDURAL BARS IMPOSEED BY THE FEDERAL COURTS?

THE FEDERAL COURTS HAVE FOUND YOUR HONOR, THAT UNIFORMLY, THAT APRENDI IS NOT RETROACTIVELY APPLICABLE AND HAVE APPLIED THE TEAGUE VERSUS LANE RATIONALE OF NONRETRO ACTIVITY, AND WHAT THAT MEANS IN NUTSHELL TERMS IS APRENDI IS NOT NEW LAW. APRENDI IS MERELY THE MOST RECENT CASE TO TALK ABOUT SOMETHING THAT HAS BEEN AROUND FOR YEARS, AND IN I THINK HE WILL VERSUS ISAAC AND SMITH VERSUS MURRAY, JUST BECAUSE A CLAIM GETS A LITTLE MORE RAISED OR A LITTLE MORE TRENDY OR A LITTLE MORE CURRENT, DOESN'T MEAN YOU CAN'T RAISE IT AND IT MUST ENFORCE A PROCEDURAL BAR. THIS COURT MUST APPLY ITS REGULARLY-APPLIED ROUTINE ROUTINELY-APPLIED PROCEDURAL BARS. LET ME PUT IT IN DIFFERENT TERMS. THE APRENDI CASE IS DIRECTLY ANALOGOUS WITH THE ESPINOSA CLAIM PROCEDURAL LIL-BARRED. HOWEVER, INES PIN OWES, A WHICH WAS A DIRECT APPEAL CASE, THE U.S. SUPREME COURT HELD THAT THE HEINOUS, AT ATROCIOUS OR CRUEL JURY INSTRUCTION WAS INADEQUATE. AND LESS THE THERE BE ANY QUESTION ABOUT -- AND LEST THERE BE ANY QUESTION ABOUT THE APPLICABILITY OF A PROCEDURAL BAR OR PROCEDURAL DEFAULT IN THIS SORT OF PARLANCE TO THIS SORT OF CLAIM, A CAGE VERSUS La CLAIM IS SUBJECT TO -- A CAGE VERSUS La AND A, PROCEDURAL -- LOUISIANA, AND THE BEDROCK FOUNDATION AFTER CRIMINAL TRIAL IS SUBJECT TO A PROCEDURAL FAULT OR A PROCEDURAL BAR, THEN THIS COURT DOES LIKEWISE AND SHOULD SO HOLD. THAT DOES NOT MEAN THAT THE COURT SHOULD NOT AND CANNOT, IN THE ALTERNATIVE, ADDRESS THE MERITS, IF IT WISHES TO DO SO. HOWEVER, THERE IS A LONG LINE OF US SUPREME COURT CASES, BEGINNING WITH MICHIGAN VERSUS LONG, MANY YEARS AGO, AND THEY CAME AROUND IN HARRIS VERSUS REED, AND REAFFIRMED IT, THAT IF THE STATE COURT WANTS ITS PROCEDURAL BARS HONORED BY THE FEDERAL COURTS, THE STATE COURT IS THE ONE THAT HAS TO ENFORCE THEM.

MY CONCERN ABOUT THIS, AND IT PROBABLY WOULD BE A CONCERN WITH WHAT HAPPENED WITH THE HAV -- THE HAC JURY INSTRUCTION, IS THAT WALTON VERSUS ARIZONA AND THE CASES THAT WERE DECIDED BACK AT THAT TIME, UPHELD FLORIDA'S DEATH PENALTY SENTENCING SCHEME. AND, REALLY, NOT UNTIL APRENDI AND, PERHAPS, SOMEONE WOULD ARGUE, NOT UNTIL RING VERSUS ARIZONA, WAS THERE ANY INKLING THAT MAYBE THE U.S. SUPREME COURT MIGHT DIRECTLY RECEDE FROM WALTON. WE, ALL THE TIME, ARE ENCOURAGING LAWYERS DON'T RAISE CLAIMS THAT LACK MERIT, AND, REALLY, UNTIL APRENDI CAME ALONG AND, PROBABLY, UNTIL WE DECIDED MILLS AND MILLS SAID, WE UPHELD IT, WHY WOULD WE ENCOURAGE LAWYERS TO RAISE SOMETHING THAT PROBABLY, IF WE WERE HERE AND WE HAD RAISED IT BEFORE APRENDI AND BEFORE RING, YOU WOULD HAVE SAID THIS IS MERITLESS. WHY ARE WE EVEN HERE, AND SO AREN'T LAWYERS SORT OF FACED WITH THAT DILEMMA, WHEN SOMETHING WOULD HAVE LOOKED LIKE BASED ON THE STATUS OF THE PRIOR LAW, AS BEING SOMETHING THAT WOULD HAVE JUST BEEN SUMMARILY REJECED?

I THINK, JUSTICE PARIENTE, THE ANSWER LIES WITHIN THE DIFFERENCE BETWEEN RING VERSUS ARIZONA, AND THE POSTURE WE ARE HERE, AND I AM GOING TO GO BACK TO MY ESPINOSA-SOSHURE ANALOGY. RING IS ON DIRECT APPEAL. IT IS ON DIRECT REVIEW FROM SEARCH YEAR TO THE UNITED STATES -- FROM CERTIORARI TO THE UNITED STATES SUPREME COURT IN THAT CASE. RING VERSUS ESPINOSA. THIS CASE IS SOCHURE.

WHAT DID WE DECIDE WITH THE STATUS OF THE CASE IN MILLS?

MILLS.

WAS IT A HABEAS UNDER A DEATH WARRANT?

YES, YOUR HONOR.

AND SO DIDN'T WE DECIDE IT IT -- DIDN'T WE DECIDE IT ON THE MERITS THERE?

YES, YOUR HONOR, BUT THAT DOESN'T MEAN THE PROCEDURAL BAR OR PROCEDURAL FAULT IS INVALID. I KNOW I ARGUED PROCEDURAL BAR AND YOU ALL DENIED ON THE MERITS WITHOUT DISCUSSING THE PROCEDURAL BAR.

AND THAT IS THE IDENTICAL SITUATION THAT WE ARE FACED WITH HERE, IS IT NOT? RAISED IN A HABEAS.

IT WAS RAISED IN A HABEAS, AND I WOULD SUGGEST THAT THE DIFFERENCE BETWEEN MILLS AND THIS CASE IS MILLS WAS THE FIRST CASE TO HIT THIS COURT IN ADDRESSING APRENDI IN A CONTEXT OF CAPITAL SENTENCING UNDER STATUTES. THE DIFFERENCE HERE IS THAT, AND I WOULD SUGGEST THAT THE COURT DID THE RIGHT THING IN MILLS, AND I WOULD, ALSO, POINT OUT THE U.S. SUPREME COURT DENIED CERTIORARI REVIEW IN THAT PROCEEDING, BUT THIS, AND I DON'T MEAN TO TRY TO TELL THIS COURT WHAT IT DID. I CERTAINLY WOULDN'T DO THAT, BUT IN MILLS, A MARRIAGE DISCUSSION WAS APPROPRIATE. IT IS TIME TO APPLY AND ENFORCE THE PROCEDURAL BAR. THIS CASE IS PROCEDURALLY BARRED.

YOU HAVE A NUMBER OF OTHER ISSUES.

YES, YOUR HONOR, I DO. WITH RESPECT TO THE MENTAL RETARDATION ISSUE, MENTAL RETARDATION, AS A BAR TO EXECUTION, IS AN ISSUE THAT HAS BEEN MAKING THE ROUNDS SINCE PENRY VERSUS LENAU WAS DECIDED IN 1989. THIS CASE HAS NEVER BEFORE PRESENTED A CLAIM THAT MR. BOTTOSON WAS MENTALLY RETARDED AND THE CONTRARY IS TRUE. THIS CASE'S EVIDENCE IS THAT MR. BOTTOSON IS OF LOW AVERAGE INTELLIGENCE.

IS IT CORRECT THAT REGARDLESS OF WHAT STANDARDS YOU APPLY WITH REFERENCE TO THE ISSUE OF MENTAL RETARDATION, THAT HE FINDS THAT THERE WAS NO MENTAL RETARDATION IN THIS CASE?

THAT'S CORRECT, YOUR HONOR.

IS THAT, AM I CORRECT ABOUT THAT?

YES, YOUR HONOR.

REGARDLESS OF WHETHER IT IS A STATUTE OR WHETHER IT IS A STANDARD OUT THERE IN THE MEDICAL COMMUNITY, THAT HE FINDS FACTUALLY THAT, THERE IS NOT MENTAL RETARDATION HERE.

THAT IS CORRECT, YOUR HONOR. I WOULD POINT OUT, BEFORE I COME AND I AM GOING TO COME BACK TO, AND ADDRESS THE DISTINCTIONS TO THE EXTENT THAT THERE ARE ANY BETWEEN THE PSYCHOLOGICAL DEFINITION THAT IS EMPLOYED BY PSYCHOLOGISTS OF MENTAL RETARDATION AND THE STATUTE DEFINITION, BUT I WOULD POINT OUT, AND THIS IS HIGHLY SIGNIFICANT TO THIS COURT'S CONSIDERATION OF THE MENTAL RETARDATION ISSUE. IN THE 3.850 PROCEEDING IN 1991, TWO YEARS AFTER PENRY VERSUS LENAU, MR. BOTTOSON PUT ON EVIDENCE THAT HE WAS OF LOW AVERAGE INTELLIGENCE. NOT UNTIL THE STATUTE WAS PASSED AND CERTIORARI REVIEW WAS TAKEN IN ADKINS VERSUS VIRGINIA, DID MR. BOTTOSON CLAIM HE WAS MENTALLY RETARDED. NOW, WITH THAT SAID, I WOULD SUGGEST THAT MR. BOTTOSON IS PROCEDURALLY DEFAULTED, FIST OF ALL, FROM RAISING THE MENTAL RETARDATION AS A BAR TO EXECUTION CLAIM, BECAUSE IT COULD HAVE BEEN RAISED IN THE 3.850 PROCEEDING THAT WAS NOT CONDUCTED UNDER A DEATH WARRANT, BACK IN 1991, AND AFFIRMATIVELY CHOSE NOT TO DO SO. WITH THAT SAID, THE DEFINITION OF MENTAL RETARDATION CONTAINED IN THE STATUTE, SETS OUT A TOP END SCORE, AS I RECALL, OF 75. 75 IQ ON AN INDIVIDUALLY INDIVIDUALLY-ADMINISTERED STANDARDIZED IQ TEST, REQUIRES CONCURRENT DEFICITS IN ADAPTIVE FUNCTIONING, AND IT REQUIRES THAT THOSE PRECEDING TWO CONDITIONS, SUBAVERAGE INTELLECTUAL FUNCTIONING, DEFICIT IN ADAPTIVE FUNCTIONING, MANIFEST THES THEMSELVES BEFORE THE AGE OF 18. -- MANIFEST THEMSELVES BEFORE THE AGE OF 18. THE DIAGNOSTIC AND STATISTICAL MANUAL FOURTH EDITION REVISED, AND I WILL REFER TO THAT AS THE DSM, SO I HAVE TO KEEP SAYING THE TITLE OF THE BOOK, REQUIRES SIGNIFICANTLY SUBAVERAGE INTELLECTUAL FUNCTIONING, EXISTING CONCURRENTLY WITH A DEFICIT IN ADAPTIVE FUNCTIONING AND ONSET BEFORE AGE 18. I WOULD SUGGEST THAT THERE IS VIRTUALLY NO DIFFERENCE BETWEEN THE TWO DEFINITIONS, AND I WOULD FURTHER POINT OUT THAT NONE OF THE MENTAL STATE EXPERTS WHO TESTIFIED WITH REFERENCE TO MR. BOTTOSON'S INTELLECTUAL FUNCTIONING, HAD ANY QUESTION, ANY TROUBLE AND ANY RELUCTANCE IN DISCUSSING MENTAL RETARDATION  RETARDATION. MR. BOTTOSON'S OWN EXPERT TESTIFIED THAT HE KNEW WHAT MENTAL RETARDATION WAS AND HE DIDN'T NEED ANYBODY TO TELL HIM HOW TO DIAGNOSE IT.

HOW DID THEY DEAL WITH, HOWEVER, THE ISSUE OF THE ONSET, PRIOR TO AGE 18? DID THEY, IN FACT, SAY, AS THE PETITIONER HERE CONTENDS, THAT THAT WASN'T AN IMPORTANT ISSUE, IN DETERMINING MENTAL RETARDATION?

THAT IS AN OVERREACHING OF THE TESTIMONY, I WOULD SUGGEST, AND LET ME TELL YOU WHY, JUSTICE QUINCE. TAKE THAT QUESTION PRESENTS QUITE A BIT. THE DIAGNOSTIC CRITERIA FOR MENTAL RETARDATION ARE THREE FOLD. I HAVE SAID WHAT THEY ARE. SUBAVERAGE INTELLECTUAL FUNCTIONING, DEFICITS IN ADAPTIVE FUNCTIONING, COUPLED WITH ONSET BEFORE AGE 18. IT IS NOT UNLIKE WHAT THIS COURT DOES IN THE STRICKLAND VERSUS WASHINGTON ANALYSIS, WHERE THE PREJUDICE, THE PERFORMANCE AND PREJUDICE PRONGS, WHERE, IF YOU CAN DECIDE IT ON PERFORMANCE, YOU CAN DECIDE IT ON PREJUDICE, YOU CAN DECIDE IT ON THE ONE, NOT BOTH THAT, IS MOST EASILY ADDRESSED, BECAUSE YOU HAVE GOT TO HAVE BOTH, AND THE TESTIMONY HERE, WITH REGARD TO THE DIAGNOSTIC CRITERIA OR DECISION TREE OR WHATEVER YOU WANT TO CALL IT FOR MAKING A DIAGNOSIS OF MENTAL RETARDATION WAS THAT, IF YOU DON'T HAVE SUBAVERAGE INTELLECTUAL FUNCTIONING, WHICH MR. BOTTOSON DOES NOT, WITH AN IQ OF 84, AND YOU DON'T HAVE DEFICITS IN ADAPTIVE FUNCTIONING WHERE YOU HAVE MR. BOTTOSON FUNCTIONING IN THE NORMAL RANGE. YOU DON'T FET -- YOU DON'T GET TO THEISH YOUTHFUL PRE-18 ONSET. IT IS NOT THAT THEISH -- THE ISSUE OF PRE-18 ONSET. THE ISSUE IS, THE RELEVANT, IS THAT YOU DON'T GET TO THAT POINT IN THE DIAGNOSTIC PROCESS, BECAUSE IF YOU DON'T HAVE SIGNIFICANTLY SUBAVERAGE INTELLECTUAL FUNCTIONING AND YOU DON'T HAVE DEFICITS IN ADAPTIVE FUNCTIONING, NEITHER OF THOSE TWO CONDITIONS CAN HAVE STARTED BEFORE THE GUY WAS 18! I MEAN, IT IS ONE OF THOSE STATEMENTS THAT IS RATHER DIFFICULT TO MAKE, BUT IF THE FIRST TWO DON'T EXIST, THE THIRD CAN'T EXIST! AM I ANSWERING THE QUESTION?

YOU ARE SAYING, BECAUSE HE DOES NOT MANIFEST THOSE TWO CRITERIA PRESENTLY, THEN YOU DON'T HAVE TO GO, YOU ARE SAYING YOU DON'T HAVE TO GO BACK TO BEFORE AGE 18. THAT PARTICULAR CRITERIA, BECAUSE HE DOESN'T MEET THE OTHER TWO.

RIGHT. THAN IS BASED ON THE DEFINITION OF MENTAL RETARDATION THAT IS CONTAINED IN THE STATUTE THAT, IS CONTAINED IN THE DSM, AND THAT WAS USED IN THIS EVIDENTIARY HEARING AND IS, I WOULD SUGGEST, A GENERALLY GENERALLY-ACCEPTED DEFINITION OF MENTAL RETARDATION THAT SIMPLY IS NOT SUBJECT TO CHALLENGE. NOW, I, ALSO, HEARD MY OPPONENT SUGGEST THAT THE STATUTE IS VAGUE IN SOME FASHION, IN ITS DEFINITION OF MENTAL RETARDATION AND I WOULD RESPOND TO THAT BY SAYING THIS, THE DSM-4, SAYS, WELL, AND LET ME, I GUESS THE WAY TO DEAL WITH THIS IS THE DEFINITION OF SUBAVERAGE INTELLECTUAL FUNCTIONING IS AN IQ SCORE, ON AN INDIVIDUALLY INDIVIDUALLY-ADMINISTERED IQ TEST THAT, IS TWO STANDARD DEVIATIONS BELOW THE MEAN.

FIRST OF ALL, DO YOU CONTEND, YOU ARGUE, DON'T YOU, A THAT THIS STATUTE IS NOT APPLICABLE.

THE STATUTE DOES NOT APPLY TO THIS HAS NOT. -- TO THIS MAN.

ALL RIGHT. BUT WE ARE USING THE CRITERIA FROM THE STATUTE. NOW YOU ARE ADDRESSING WHETHER IT IS VAGUE OR NOT.

YES, MA'AM. THE STATUTE ESTABLISHES A CUT OFF SCORE OF 75 FOR THE UPPER LIMIT.

THAT NUMBER DOESN'T APPEAR IN THE STATUTE. YOU ARE TAKING IT FROM THE IDEA THE TWO STANDARD DEVIATIONS?

YES, MA'AM. TWO STANDARD DEVIATIONS.

IT DOESN'T USE 75, DOES IT?

I WAS THINKING IT, DID BUT I MAY BE CONFUSING IT WITH SOMETHING ELSE. I WOULD DEFER. I MEAN, THE STATUTE SAYS WHAT IT SAYS. THE STATUTE IS A LITTLE BIT, PERHAPS, MORE, EXPANDED, A LITTLE BIT BROADER IN ITS REACH, THAN IS THE DSM-4 DEFINITION, BUT IT DOESN'T REALLY MATTER THIS CASE, BECAUSE MR. BOTTOSON IS IN THE LOW AVERAGE RANGE, WITH AN IQ SCORE OF 84 OR 85, DEPENDING ON WHOSE TEST YOU WANT TO USE. MR. BOTTOSON HAS NEVER PRESENTED A SCORE THAT WOULD FALL WITHIN THE DEFINITION OF SIGNIFICANTLY SUBAVERAGE INTELLECTUAL FUNCTION  FUNCTIONING, WHICH IS A SCORE OF 70 OR 68. 70, IF ONE STANDARD DEVIATION IS 15. TWO STANDARD DEVIATIONS WOULD BE 30. AND THAT WOULD ESTABLISH THE CUT OFF SCORE FOR A DIAGNOSIS OF MENTAL RETARDATION AT THE UPPER LIMIT BEING 70. MR. BOTTOSON HAS NEVER DONE. THAT MR. BOTTOSON DID SCORE A 77 ON A TEST THAT IS REFERRED TO AS DETERMINED. THE TESTIMONY IS, FROM THE RECORD, THAT WE ARE NOT SURE WHAT "DETERMINED" S DR. DEE THOUGHT IT MIGHT BE THE STANFORD BENET IN ITS 1959 VERSION AND TESTIFIED ABOUT THE EFFECT OF THAT TEST OR THE INTERPRETATION OF THAT TEST IN 1959, BUT THAT IS NOT THE TEST MR. BOTTOSON TOOK, BECAUSE HE TOOK IT IN 1951. MR. BOTTOSON TOOK A SUBSEQUENT -- I HAVE ADDRESSED IT IN MY BRIEF, AND IF THE COURT HAS NO QUESTIONS, I WILL STAND ON MY BRIEF WITH RESPECT TO. THAT MR. BOTTOSON ALSO SCORED A 85, WHEN HE WENT INTO THE ARMY ON, A TEST REFERRED TO AS THE BETA TEST. THAT SCORE, EXCUSE ME, WAS A 86. THAT SCORE IS REMARKABLY CONSISTENT WITH HIS CACE THREE SCORES THAT WERE -- WITH HIS WACE-3 SCORES THAT WERE OBTAINED IN 1991 AND 2002.

WHAT WERE YOU REFERRING TO IN 1991, WHEN YOU SAID HE WAS A LOW SUBINTELLIGENCE OR WHATEVER THE TERM IS?

LOW NORMAL. THERE IS NO SCORE GIVEN, YOUR HONOR. NO SCORE IS STATED.

THAT WAS AFFIRMATIVE EVIDENCE THAT WAS PUT ON BY MR. BOTTOSON BOTTOSON'S ATTORNEY?

MR. BOTTOSON.

APROPOS TO WHAT ASPECT OF THEIR CLAIM?

THE INEFFECTIVENESS OF COUNSEL CLAIM IN 1991. THE ALLEGED INEFFECTIVENESS FOR NOT PRESENTING MENTAL STATE EVIDENCE.

THEY WERE CLAIMING THAT HIS INTELLIGENCE WAS LOWER THAN NORMAL?

NO, YOUR HONOR. THE WAY IT CAME IN, IN THE TESTIMONY OF DR. ROBERT PHILLIPS DURING THAT HEARING, WAS IN CONNECTION WITH HIS TESTIMONY CONCERNING HIS OVERALL IMPRESSIONS OF MR. BOTTOSON, AND IT WAS ALMOST, QUITE HONESTLY, AN AFTERTHOUGHT ON HIS PART, IT TO SAY THAT I THINK THIS MAN IS OF LOW AVERAGE INTELLIGENCE. THE FOCUS OF THAT EVIDENCE OR THAT TESTIMONY THAT I BELIEVE LASTED A COUPLE OF DAYS, WAS NOT MR. BOTTOSON'S LEVEL OF INTELLECTUAL FUNCTIONING. MR. BOTTOSON'S LEVEL OF INTELLECTUAL FUNCTIONING WAS, REALLY, NOT AN ISSUE. NOT IN THAT PROCEEDING. AND THEY WERE, THE FOCUS, THEN, WAS DR. PHILLIPS'S TESTIMONY THAT MR. BOTTOSON IS EITHER SCHIZOPHRENIC, SUFFERS FROM SCHIZO-TYPE OF PERSONALITY OR FROM SCHIZO-TYPE OF PERSONALITY DISORDER. THAT CASE HAS ALREADY BEEN THROUGH THIS COURT AND IS NOT BACK BEFORE YOU NOW.

WOULD YOU COMMENT ON THE PET SCAN OR SPEC SCAN ISSUE.

THE PET SCAN ISSUE, JUSTICE ANSTEAD, CAME TO YOU ALL BEFORE THE HEARING, ON AN ALL-WRITS PETITION. THE STATE'S POSITION IS THAT THE PET SCAN IS BARRED, UNDER THIS COURT'S DECISION IN ALAN LEE DAVIS, AND THERE IS NO REASON FOR THIS COURT TO DEVIATE FROM THAT PRIOR DECISION.

WHAT IS YOUR UNDERSTANDING OF THE CLAIM THAT IS MADE IN WHICH THE PET SCAN IS ATTEMPTED TO BE USED? WHAT CLAIM WAS MADE BELOW THAT, IF YOU ALLOW US TO HAVE A PET SCAN, IT WILL SHOW SO-AND-SO, AND THAT WILL MEAN SO-AND-SO. HOW WAS THIS PRESENTED BELOW?

I AM REALLY NOT EXACTLY SURE WHAT CLAIM IT WAS GOING ON TO. -- IT WAS GOING TO, JUSTICE ANSTEAD. THE PET SCAN, AND I DON'T WANT TO MAKE MYSELF AN EXPERT ON PET SCAN, BUT MY UNDERSTANDING IS THE PET SCAN WON'T DO ANYTHING, AS FAR AS THE DIAGNOSIS OF MENTAL RETARDATION. IT WON'T DO ANY ANYTHING, AS FAR AS A DIAGNOSIS OF SCHIZOPHRENIA. IT MIGHT OR MIGHT NOT SHOW BRAIN DAMAGE, BUT THE PET SCAN ISSUE IS TIME-BARRED AND I AM OUT OF TIME HERE, BUT THE PET SCAN ISSUE IS TIME-BARRED, BECAUSE IT COULD HAVE BEEN RAISED LONG AGO. PET SCANS HAVE BEEN AROUND SINCE 1995. IN CONCLUSION I WOULD ASK THE COURT TO FIND THE APRENDI ISSUE PROCEDURAL LIL BARRED AND RULE ON THE MENTAL -- PROCEDURALLY BARRED AND RULE ON THE MENTAL RETARDATION AND DENY RELIEF.

THANK YOU, MR. NUNNELLEY. REBUTTAL.

THANK YOU, CHIEF JUSTICE. I WOULD LIKE TO TAKE ASECOND TO RESPOND TO MY OPPONENT'S ARGUMENT WITH REGARDS TO MENTAL RETARDATION, SPECIFICALLY WITH THE FACTS THAT WERE BROUGHT OUT BELOW. THE SCORES THAT WERE FOUND, 76, 77, 84, THAT IS EXACTLY WHY WE ARE HERE TODAY. WE HAVE SO MANY SCORES OUT THERE  THERE. THAT IS WHY WE NEED AN ADVERSARIAL TESTING OF THESE SCORES.

ISN'T THAT WHAT YOU HAD AT THE EVIDENTIARY HEARING?

WE DIDN'T, AND THAT IS MY --

WAS THERE ANY LIMITATION BY THE TRIAL COURT ON THE EVIDENCE YOU COULD PRODUCE?

WE WERE NOT PUT IN THE SAME POSITION AS SOMEONE WHO WOULD HAVE THE BENEFIT OF THE STATUTE DISCOVERY. NOTICE, REPORTS, DEPOSITIONS. WE IN A WARRANT SITUATION ON A SUCCESSOR 3.850 MOTION. BOTH OPPOSING COUNSEL AND MYSELF ARE RECEIVING REPORTS THE NIGHT BEFORE WE HAVE THESE HEARINGS. THIS IS THE KIND OF EVIDENCE WE BRING UP IN 3.8 50s, ABOUT TRIAL -- IN 3.850S ABOUT TRIAL ATTORNEYS. I AM NOT SAYING WE ARE INEFFECTIVE, NO, BUT IT IS IMPORTANT, WHEN YOU ARE DEAING WITH SUCH A VERY DIFFICULT ISSUE AS MENTAL RETARDATION. YOU JUST CAN'T LOOK AT SOMEONE AND SAY I THINK YOU ARE MENTALLY RETARDED OR WILL YOU ARE LOW AVERAGE OR WHATEVER. THAT IS VERY DIFFICULT. AND EVERY BOOK ON MENTAL RETARDATION WILL SAY. THAT YOU CAN'T DO. THAT IT TAKES A LOT OF TESTING. IT TAKES A LOT OF INTERACTION WITH THE INDIVIDUAL, BECAUSE SOMETIMES IT DOESN'T COME OUT RIGHT AWAY.

HOW DO YOU RESPOND TO OPPOSING COUNSEL'S ARGUMENT THAT IF THE PRESENT COGNITIVE FUNCTIONING AND THE OTHER CRITERIA ARE KNOW THE -- THE OTHER CITE EAR YARROW-CRITERIA ARE NOT MET -- AND THE OTHER CRITERIA ARE NOT MET, AND WHAT IS THE PRESENT SCORE CONCERNING MR. BOTTOSON'S FUNCTIONING?

I GUESS I DON'T WANT TO BELABOR THE POINT, BUT WE HAD NO STANDARDS, AND I THINK THIS COURT UNDERSTANDS OUR POSITION, JUSTICE QUINCE.

BUT THERE WERE SCORES, CORRECT?

THERE WERE SCORES.

AND WHAT WERE THOSE?

84 AND 85, I BELIEVE, DR. McCLAREN AND DR. DEE, BOTH, GAVE THE SAME TEST. I WOULD URGE THIS COURT --

WELL, UNDER EITHER OF THE STANDARDS. WOULD THAT SHOW MENTAL RETARDATION? IS YOUR ARGUMENT THAT THESE SCORES, IN FACT, SHOW MENTAL RETARDATION?

OUR ARGUMENT IS THAT THE PROPER DETERMINATION OF MENTAL RETARDATION WAS DONE INCORRECTLY. OUR EXPERT FOCUSED ON SET AND THEN GO FORWARD. THEIR EXPERT SAID, NO, WE DON'T NEED TO LOOK AT THAT. AND THAT IS WHY WE NEED AN ADVERSARIAL, A PROPER ADVERSARIAL TESTING OF THIS EVIDENCE.

WELL, YOU KEEP SAYING A PROPER ADVERSARIAL TESTING.

UM-HUM.

WHAT DO YOU CONTEND DID NOT TAKE PLACE DURING THE EVIDENTIARY HEARING, THAT SHOULD HAVE?

PROPER NOTICE, DEPOSITIONS, TIME TO PREPARE, THOUGHTFUL CONSIDERATION OF THE EVIDENCE. ALL OF THE THINGS THAT ARE AFFORDED A CRIMINAL DEFENDANT, THE CONSTITUTIONAL RIGHTS THAT ARE AFFORDED A CRIMINAL DEFENDANT, BEFORE HE GOES TO TRIAL. DISCOVERY AND SO FORTH. WE GET THESE THINGS, WE GET THESE TESTS RIGHT BEFORE WE HAD TO LOOK. WE ARE STUDYING THESE TEST THES DURING THE EVIDENTIARY HEARING -- THESE TESTS DURING THE EVIDENTIARY HEARING, RECEIVED THESE TESTS AT TEN O'CLOCK THE NIGHT BEFORE THE EVIDENTIARY HEARING. IT IS VERY DIFFICULT TO PREPARE. I SEE THAT I AM OUT OF TIME. MR. CHIEF JUSTICE

THANK YOU, COUNSEL. THANK YOU FOR YOUR ASSISTANCE THIS CASE. THE COURT WILL BE IN RECESS.