and hope that as that is happening, other americans are getting more informed about what their money is doing and what their government is doing. i don't think it is solely up to arab-americans by any means at all. i guess that is it. thank you very much. [applause] >> today we have live coverage of this year's final day of the conservative political action conf conference scheduled speakers include former house speaker newt gingrich, conservative columnist and coulter and former alaska governor sarah palin among others. watch them all live at 12:40 p.m. on eastern and let us

know what you think that facebook.com/c-span or tweet us with-tag c-span chat. this week the supreme court heard oral argument in hall v. florida, a case testing the limits on the court at the ban against executing the intellectually disabled. the issue rests on how states define intellectual disability when using iq tests. florida has an iq cut off of 74 determining intellectual disability. the court will decide if this cut off is so rigid that it is unconstitutional. in 2002 the supreme court ruled executing those who are, quote, mentally retarded is, quote, cool and unusual punishment under the eighth amendment. the court decided it that time to leave it to the states to determine the criteria for meeting this standard. this is an hour.

>> case 12, hall v. florida. >> may it please the court. in adkins vs. virginia this court held the constitution bars executing persons with mental retardation, persons with significantly sub average intellectual function concurrent with deficits and adapted behavior with an aunt said before the age of 18. because of the standard error of measurement inherent in iq tests it is universally accepted that persons with scores of 71-75 can and often do have mental retardation when those three prongs are net. this statistical error of measurement -- >> a line has to be drawn somewhere. we did say in atkins we would

leave it up to the states to determine the standards for this issue so what is the tool we announce today? of 70 is not okay but 75 would be? >> let me first take some issue with all due respect in your characterization of adkins. what this court said in adkins is not the we leave it to the states to establish the standards for the clinical condition of mental retardation. what you said quoting ford is we leave it to the states the task of developing appropriate ways to enforce the constitutional restrictions that we announce. the ruling that we advocate is, and the only real question presented in this case is just this. if a state conditions the

opportunity to demonstrate mental retardation on obtained iq test scores, it cannot ignore the measurement errors that is inherent in those scores. it is a statistical feature of the test instrument itself. >> we didn't base our decision on a study of what the american psychiatric association and other medical associations consider to be mental retardation. we based it on what was the general rule that states had adopted and a large number of states had adopted 70 as the criteria. the criteria is what do the american people think is the level of mental retardation that should make it impossible to impose the death penalty. we didn't look for the answer to that question to the apa or other medical associations.

we look to what the states did. what has changed in what the states do? >> justice scalia, i would like to respond with four points and i hoped desperately i remember them. what this court said was this court number one, made clear as it is reiterated in miller vs. alabama and graham versus florida that while a consensus or perceived consensus among the states is important the ultimate test is this court's conclusion about what the eighth amendment does or doesn't allow. in making that determination on page 318 of this court's opinion in adkins this court after reciting in footnote 3 be virtually identical clinical definitions of mental retardation and in footnote 5 pointing out that 70 to 75 is

the established cut off for mental retardation this court said the following, quote, clinical definitions of mental retardation require the three tests. because of their impairment sec, mentally retarded persons by definition, that is by the clinical definition have diminished capacity is to understand him, at all the other disabilities that made imposition of the death penalty for persons with a that clinical condition unconstitutional. as to what the states did, the court did refer to i believe 18 state statutes. in those state statues, not a single decision of the highest court of any state or any court in any state apply 70 or two standard deviations from the

mean without reference to the s e m. the only statutes that has rested in 2002 when this court decided adkins was arizona which expressly provided that the stem must be taken into account in evaluating the obtained iq. >> established by whom? >> standard error of measurement established by creators of the test, it is not something clinician's dream up, not something decided by the a a idd or american psychiatric association. it is inherent in the test and all clinicians are told, both professional associations make clear because it is simply a statistical fact, it must be taken into account such that and obtained iq test score is actually the result of an obtained iq test score accounts

for the -- >> do they establish these course? is it for the purpose of determining who is so incapable of controlling his actions that he shouldn't be subject to the death penalty. is that what they are looking for when they establish 70 to 75? what are they looking for? >> they are looking for intelligence tests supply -- they want to-they weren't created for the clinical definition of mental retardation. they were created in order to determine a proxy for true intellectual function and therefore the truth i q test score -- >> i'm not talking iq tests in general. i am talking about why did they pick -- the use to pick 70, now they pick between 70 and 75 as the upper limit. i assume it is for people who would profit from medical

treatment. >> there are many reasons why a person's iq, a person's intellectual functioning may be important, a whole variety of reasons, medical, psychological, development of land as a component of the clinical condition of mental retardation the eighth amendment. >> could we clarify one thing? what you refer to as the s e m is not for an iq of 70-75. that is across the board. >> this statistical concept of the standard error of measurement has applied to all forms. >> has nothing to do with the death penalty and mental retardation. >> no. i am sure when archimedes announced his principal based on his experimental observations he

also recognized essentially this standard -- >> i come back to something to what justice sotomayor started out with. does the constitution allows the state to establish any hard, of? say 76? can it do that? >> i think it can because the standard definition of pronged 1, intellectual functioning gives two or more standard deviations below the mean to do that. let me just explain and because it could different state is using and obtained iq test score as the proxy for fruit intellectual function it has to take into account the standard error of measurement and therefore states like mississippi and oklahoma, that in fact establish a caught off of 75 in our view is

constitutional as this court announced the class of individuals in adkins. >> when you say the standard error of measurement you are talking about a degree of confidence and your submission is that you need to have 95% degree of confidence. >> that is what the 5 gives you or the numbers wrong? >> on a test that is normally on the grid 70 is two standard deviations below the means. if there is a standard error of measurement, it is not my sufficient -- >> i'm trying to figure out what it means. >> what it means is someone for example with the obtained iq test score on 71 as mr. paul received has a 90% probability that his score will be between 76 -- >> why is 95% -- where does that come from? why are you thinking 95%?

why isn't it 90%? >> i am not doing any kicking. >> why did organizations pick 9%? >> it has been two sp ems which is 95% for decades and decades and we recognize the consensus that universal consensus in footnote five -- >> which one has the burden of persuasion on the issue? what is the standard? >> it varies from state to state. >> what does the eighth amendment require? does the eighth amendment permitting state to assign to the defendant the burden of persuasion on iq? iq above 75? they assigned above 70? they assigned that to the defendant and if they can, what is the standard of proof the defendant has to meet?

>> the short answer is i will come to so you see where i am going, we believe it is entirely constitutional for the state to sign the burden of proving mental retardation on the defendant and so far as the clinical definition recognized by this court in adkins is a three part conjunctive test, i think it is fair to say that a logical consequence of that is as to every component the burden may constitutionally be placed on the defendant. the burden with respect to from one is the burden of proving significantly sub average intellectual functioning of which approves i.q. score is a probabilistic piece of evidence. >> why can't the state -- you told me the state can establish a hard cut off and you told me

the state can assign the burden to the defendant. in the case of someone who scores 75 is it not the case that there is no more than at 2.5% chance that person's real iq is 70, so how does that square with any burden of proof that might be in standard of proof that life the assigned on that point? that is what i don't understand about your argument. >> let me see if i can explain. this is a man who has a 71. >> i'm talking about the general issue. >> the general issue -- let me say it this way. the whole idea behind measurement error is you can't make a valid judgment that somebody doesn't have a truce score of 70 or below if the obtained score is within the measurement error and even more fundamental than that, your

question suggests, the state's suggestion suggests diagnosing mental retardation which is a constitutional inquiry is just a probabilistic inquiry into a person's, quote, true i.q. score, but true iq scores themselves are a statistical concept, the score that you would get on a hypothetical test that had no measurement error. true iq is not the same as intellectual function. and iq tests themselves however perfect they may be don't perfectly capture a person's intellectual function. >> i understand that argument but that does not seem to me to be consistent with your point data state can establish a hard cough, 76, you get 76 on an iq test that is the end of the inquiry, the person does not qualify under atkins.

>> this would not be a standard i would endorse but i believe that in light of the consensus test that all professional organizations apply that was recognized in adkins, a score that is above the standard error of measurement of two standard deviations above the mean would be okay but the point, the converse point seems to me is not true which is we know for a fact that many, many people who obtain test scores of 71 to 75 in fact that mental retardation and define a point out that in this case there were six experts who fully examined mr. hall or supervise a full examination of mr. hall. they were cognizant of the iq test scores that he had received

and each one of them opined without hesitation that he had mental retardation, functional mental retardation. >> the finding that he did not show advanced behavior so that that was so, all of those experts you referred to were speaking retrospectively without evidence of what a defendant's current condition was. >> that is correct, justice ginsburg. the trial court ruled it would not accept evidence as to prongs' 2 and 3 but it did all of mr. hall's lawyers to make a proper, pursuant to the state's

agreement that there could be a proper, and some expeditious manner, that is 158, one of the two grounds that we appealed to the florida supreme court on in addition to the hard caught off at 70 was the fact that in fact an expeditious proper did not in fact permit us to put on all of our evidence about prongs 2 and 3 and the florida supreme court on page 125 of the joint appendix said we don't need to consider that question because we uphold the rule in charity. >> what do we do about the retrospective proof? a simple question. how does the defendant adapt a on -- testing that, i don't know

why i didn't do it. but he had in fact done it. >> you are correct. part of the expeditious proffer was limited to the testimony of i believe actually only one of the experts who examined him and did the add active testing function and that expert did say he didn't test in prison. there is again a universal professional consensus that adaptive functioning is tested by adaptive functioning in the real world, not adaptive functioning that occurs after 35 years on death row and in fact we also know to a clinical certainty that because mental retardation is a condition that is both developmental and not transient, that is there have to

be demonstrated on set during the developmental period, but one doesn't emerge from the condition of mental retardation unlike mental illness. >> talk about the condition of mental disability involved here. i want to go back to something you said in response to justice scalia. the question was a long lines of what does it mean to have the disorder under the dsm? one thing it means is scholars can talk about it and all focus on the same subject. does it have any meaning other than that? is it is an objective index, an objective characterization that certain people have certain mental conditions? is that what it means? >> that is exactly what it means, justice kennedy. it is a clinical condition, unlike for example in sanity.

it is clinical -- >> any evidence that society in general would give substantial difference to the psychiatric profession in this respect? any studies on that? to see that that is true or not true? >> i am not aware of anything that suggests that society doesn't look to professional evaluations to do this and in fact if one looks only at floor at's system florida uses mental retardation as a determinant for things other than the death penalty. it uses the existence of the condition for educational remediation, vocational rehabilitation, and in those instances as we point out in our brief the florida does apply the standard error of measurement -- >> later in novel week, we have

economic theory says, it is of little different because in that case it is the court's own jurisprudence and we have not said as we have in adkins that it is up to the state. do you think we deferred to psychology, psychiatrists any more or less than economists? >> it has to be much, much more because as this court has pointed out this is a clinical condition. it is a condition that can only be appropriately diagnosed by professionals. >> they change their mind, the same organization that once said homosexuality was a mental disability and now says it is perfectly normal. they change their minds. they change their minds as to whether 70 or 75 is the new test for mental retardation. >> the latter is not true.

this standard -- two things that are not in dispute in this case, we are only talking about from 1 which is significantly sub average intellectual functioning and nothing else, and everyone agrees, all the states agree, they all agreed at the time adkins was decided that the clinical condition is key find by three elements and the first element significantly sub average intellectual functioning is defined as a parisian whose intellectual function is 2 or more standard deviations below the mean intellectual functioning of contemporary society. >> can i take you back to question the chief justice asks, the chief justice said where does this myron belkind to come from? the testmaker's determination is this is the margin of error that

gives you 95% confidence. the question here, one question here is why do we have a 95%, why do we need a 95% confidence level? you could say it either way, we are putting somebody to death, we should have 100% confidence level or you could say as i take it justice alito's point, the burden of proof is on the defendant anyway so 95% confidence level seems awfully high, we should ration it down to 80% so why for this purpose do we have to go with the testmaker's determination that 5 is what gives you a 95% confidence level? >> the fact that two sems gives you confidence level is a statistical fact. why do clinicians and professional associations use that?

>> that is not really my question. they might use it for a wide variety of purposes. the question is why does their determination that is useful for wide variety of purposes have a 95% confidence level, why is the state stuck with that for this purpose? >> because this goes to the reason they use it. the reason they use it is because of the inherent imprecision in testing in mineral but in particular testing for the presence of something relative intellectual functioning. there are so many -- it is so common for people who for a variety of reasons obtain a 71 or 72 in fact have mental retardation and because evidence -- evaluation of intellectual function in vaults clinically much more than a test score, look what happened in this case. all of the iq tests that were

administered call of the tests were accompanied because they fell within the standard error of measurement were accompanied by the administration of further intelligence testing for confirmatory -- >> is that what you want? back to justice sotomayor's questions start knocking around 95% it is all over the law, 95% is a classical measure by scientists of when they have confidence. the fact that the regression analysis seems to establish is in fact a fact. weather in jury trials by discriminating because they don't have black people on the jury, it is all over the law. i assume you are not asking us to muck around with that number because i don't know what the consequences would be. this is how we reduce it because the same test six times and we have reduced from 5% above 70 to

may be 1100th of 1%. is that what you want to happen? >> as to your letter point -- >> i write what i said. >> you are not right in some of the things you said. the last thing you said is not right which is -- >> before the last thing. >> the last thing is important is >> not saying it is important but the last thing is dependent on my being right on everything before the last thing so am i right before the last thing? >> you are right that 95% is generally speaking the features that is widely adopted as a confidence level and particularly important here because the constitutional guarantee announced in atkins is against the execution of persons with mental retardation. >> on the last point before your time expires i think this is important. is there not another way of proving liability? what about multiple tests? 25 tests in 24 times the person scored 76 and one time the

person scored 72. what would you -- how would you deal with that in a state that has a hard cough? >> this is the last point that i wanted to get to and the best thing before my time runs out of one to point you to page 10 foot note 3 of our reply brief which cites the oxford hand book of -- i don't know -- clinical diagnosis or something and we have given you the pages and on those pages explains why when you have a situation, somebody who takes more than one test, the appropriate determinant is very much not the average. it is what is called the composite score and the composite score is different and in fact for people below the mean, below the average, because you have to take into account the fact of regression and the fact that a person who takes two, three four tests changes the bell curve on standard deviation.

the example given in the oxford handbook is similar to this case. there were four tests, they average that 72. the composite score and there is a statistical explanation for how it is arrived at the composite score is 69 and standard error of measurement is actually larger using a composite score so that is why as to just this breyer's last point simply averaging obtained scores does not infected give you a better handle, because there are so few people whose score significantly below the mean on multiple tests, what clinicians use is a statistical analysis that takes into account the different calculation of what the standard deviation below the mean is the >> that is not consistent with my understanding. i don't claim to have a deep understanding of it but what would your answer to my

hypothetical, where there are multiple scores above the hard, of but one that is below and i will ask the state the opposite question. what would you do there? >> we know what florida does. >> what does the amendment requiring your view? >> in our view the eighth amendment requires if a state chooses to use iq test scores as a proxy for intellectual functioning rather than a full inquiry into intellectual functioning, it cannot refuse to employ the standard errors of measurement that are inherent in the tests. >> what if 76 -- it would not need to go on to adaptive behavior. >> our view is that a state consistent with atkins could say that if you have no obtained score on a valid, properly administered, up-to-date test,

that is below 76, you may constitutionally be precluded. many clinicians would go ahead and do adaptive functioning in other intellectual testing but our view is states like mississippi and oklahoma that set 76 as the cut off do in fact comply with adkins. >> thank you, counsel. general windsor. >> this court to affirm the decision of the florida supreme court because it represents reasonable legislative judgment consistent with adkins and the eighth amendment. i will start by responding to your question about what do you do with multiple scores? in this case we are not talking about someone with a 1 or 2 i.q. score. when you look at the gold standard, he had test scores of

71, 72, 73, 74, and 80 and as we understand what the petition would have this court do is to take those lower scores and simply subtract 5 points on them. that is not consistent with the material he cited in a footnote in his brief. if you look at the example they do apply statistical principles to a range of scores but do not simply take the lowest score and subtract five points. the logic of that i would submit is fairly obvious. you couldn't have a situation where you have a low iq of 71 and high iq of 80 and say at the same time there is a 95% chance his score is between 75 and 85 and also 95% chance that his score is between 66-76. >> you want us to destroy this case and establish the principle, the very significant principles that where you have a criminal defendant condemned to

death for murder who scores 71, 72, 73, 74, 80, that is okay, that is all you are trying to persuade us of? >> i'm not happy having to go through this in future cases where you have 69, 74, 75, 81. don't you have some more general principle other than the particular scores in this case are good enough? >> we think a particular scores in this case are good enough but we have a broader principle which is when you are dealing with things like missile diagnosis or things in the medical field generally event there is good reason for this court to do as it has historically to defer to reasonable legislative judgment. >> let me ask you this. suppose the american psychiatric association and all other professional associations do use

the sem. it seems to me what the state is saying is it declines the standards that are designed and administer and interpret the test. >> i feel responsible for that. of the constitution which we submitted, if there were a constitutional rule the eighth amendment requires florida to adopt all kinds of clinical criteria that the a p a -- >> this is not clinical, statistical criteria of -- clinical would be sem, not a clinical judgment but a standard error of measurement. >> justice kennedy's question is how can florida deviate from what the dsm, best practices.

>> what the test givers say is the right way to look at their test? >> the test measures publish the error measurement. they are suggesting deviations? >> not challenging the two standard deviations. the other two factors of your tests based on a school or, that has sem of 5, you have to use the sem. it is very different. you have to take that number and declared that person mentally intellectually challenged. they apply the other factors. >> any instance the existence of all three problems but with respect to the 95% interval --

>> i thought you don't have to go to your view, don't have to go -- on the first, on this bill, the adaptive behavior doesn't come into the picture coming into the picture, if the iq is about 70. >> that is correct. it is a three part test. the medical community doesn't dispute that. and the diagnosis of mental retardation, we meet each of the three. >> what is wrong? made the agreement among you on this, there are three parts as you said, one part is significantly sub average

intellectual functioning. it was above 70. that is the end of it. that is the judge deciding it. there is an expert here. that number 70 is subject to error. it was 68, the number of 68 is subject to error. and bring in the witness, it is 5% of the time. it is only one or two. there are other ways of going about it. six time, different questions and that may not eliminate. there's some other way to do it.

there are other ways, not just tests. i think you would do the same thing if you wanted to on the downside. that might lead people not to be executed. that is their position, and they get to do it on the upside. what is wrong with that? doesn't sound so terrible. and the eighth amendment. this doesn't need to be amendment violation. and that doubles -- >> doesn't raise the limit to 75. i don't want to repeat it, when it is there at 70, they called their experts who inform the decisionmaker what i said. that would take a little time,

maybe 15 minutes, maybe 0 little longer, that is what they want to do. what is so terrible about doing it? >> what is so terrible about doing it is you end of increasing the proportion of the number of people eligible for mental retardation. >> only those who are mentally retarded. >> no, your honor. there is no disagreement that 70 is the appropriate threshold. this is almost an evidentiary matter. what does it take to improve by clear and convincing evidence which is the standard of proof they have as a matter of florida law and standard of proof they do not challenge in this case and all 4 recognizes the best measure of your true iq is your obtained iq test scores. >> the ultimate determination is whether somebody is mentally retarded. the i.q. test is just a part of

that. up part of one thought of that ultimate determination. your cut off essentially says the inquiry has to stop there. the question is how is that consistent with anything we say when it comes to the death penalty. when it comes to meeting out the death penalty, we do individualized consideration and we allow people to make their best case about why they are not eligible for the death penalty and essentially what their caught off does is it stops that in its track as to a person who may or may not, and i q over 70 common let alone is not people who may not be -- who may be mentally retarded. >> the adkins hearing in florida is separate from the mitigation face so he does have

individualized decisionsmaking with respect to whether to have the -- he had an opportunity -- >> with respect to this critical question, we said you cannot execute somebody who is mentally retarded. and he says you are preventing me from showing you you are mentally retarded because you have an iq test, a part of one prong of a three prong test you have an iq test that says i am not mentally retarded but that iq test may be wrong. not given that you are not using a margin of error. >> with respect to the i.q. test being just one part of the intellectual function that is a very recent development and one of the problems with the idea of constitutionalizing medical criteria is it is changing. if you look at the ds and 4 which was in addition at the time of machens, replaced it last year. they said intellectual

functioning was defined. >> we don't allow all factors to be considered, do we? with the state have been able to refuel his assertion of mental retardation by pointing to the fact that he is the one who's sees norman, pushed her into a car, drove the car with his accomplice following in another car and who killed her and killed a policeman too later. could the state bring that in. someone who is mentally retarded enough, so mentally retarded as not to be responsible and not to be subject to the death penalty, we could not have pulled this off. this is not a person who is that mentally retarded significantly mentally retarded. >> the reputation of his mental retardation -- >> adaptive functioning portion

of the test, it is all about i.q.. and adaptive functioning. and some of what is irrelevant to that. responding to the earlier question, it is not that florida is not allowing evidence, it is that florida is making a finding you cannot satisfy prong one which is why you don't -- >> from justice kagan's question is an important question. the inaccuracy to some extent of iq scores and your rule prevents us from better understanding whether your i.q. score is accurate or not. cannot even reach the adaptive

functioning. you prevent it at the outset. >> it is under 65 and under 70. >> it is a three prong test and you have to satisfy all of them and with respect to your question whether adaptive function in evidence can affect their reading of the iq, we submit that is not the case which is why there are discreet inquiries. if you have multiple test scores -- >> very close cases doesn't eliminate whether or not the i.q. test is exactly as reported or subject to a decrease or increase depending on what the evidence of the depth of functioning shows? >> no. that would be the position of the modern dsm but radical departure from where it has been historically. it is used to define the intellectual functioning prong -- >> i will read adkins again. atkins did referred to the

adaptive functioning. >> there is an adaptive function in inquiry. that is one of the three prongs. you have to prove adaptive function in. >> that was under dsm 4. >> that is have part for decades. what is changing as the web the medical community looks at how to measure iq. >> at the very least you give somebody an iq test score of 71, he might have an iq of 71 or we know from the way the standard margin of error werke might have an iq of 69 and you won't let him go to the adaptive behavior problem of the test and show that he can't function in society in the ways that adkins seems to care about as justice kennedy said. it would seem this i.q. score number might be accurate or might not be. >> adaptive functioning is a critical component but even the

guidelines dsm would agree no matter what your deficits are in it that the functioning you do not qualify for mental retardation diagnoses without also showing substantial deficit in intellectual functioning. >> i note there is less emphasis now on the i.q. test than there was before but when the i.q. test was used, did they always use it as a fixed number or did they always include the sem as in forming the clinical judgment? >> the sem has been part of the equation. we are not disputing that. is that the same and all medical diagnosis? >> the application has been a component of this for some time. we do not the emphasis is

decreasing. they stay where it is which is using the s p m. >> they applied espn and the same way clinicians to because that is the way clinician's do it. if you go down that road to understand in a principled way there that would stop. >> those who use iq tests always require a 95% confidence level and always must require a 95% confidence level. let's suppose -- on the other end of the i.q. scale want to identify gifted children and the child is gifted or has an iq of 130 or above. they say if you have and obtained a score of 130 you are in the gifted child program, even though there is the same percentage that would be the case with respect to someone with an iq of 70, someone is below 130. would there be something wrong with doing that?

are there places that do that? >> certainly. that is the to the decisionmaker relying on the iq for whatever purpose he or she is. there is an sem published as part of the test but the decisions of the maker relying on the court to take your example of how someone at school can set that as high or low as they want to because they might want to be particularly restrictive and that is one of the areas where what we are dealing with here in the adkins context is fundamentally different because we have an adversarial process at least with respect to contested cases. we have a burden of proof, clear and convincing evidence burden of proof that is not shared in the clinical setting. there are a lot of reasons it is different to make a diagnosis and a clinical setting particularly now when the emphasis in the medical community is providing services or making services available to people and where you don't have the same business to be loversinclusive. >> could state changed its statutes we are now using a

threshold of six the? >> the state has substantially -- the answer to that is yes although it would be more difficult because i think what you would want to do is go back and look at the consensus which was a part of adkins and supported the decision in adkins but before making a decision on 60, some other number, and -- >> they have to explain that but i thought 70 was a very long standing. everybody has agreed it was 70 for many decades. and maybe forever. why would the states say no to that. >> the special-interest, the fact that the state may need to be restrictive because of the malingering that inmates would have to score lower than they

would ordinarily performed at, you wouldn't have been a clinical setting or a school setting where people are always trying to -- >> that is where you have the other two prongs. >> you certainly have -- >> a juncture where you have the cutoff. you have the ability to unseat the other prongs. and you are stopping them on a test based on a test score that is a margin of error recognized by the designers of the test. >> we are not stopping them, all we are stopping is the consideration of the other prongs' when it is clear the first prong can't be satisfied. in the briefing this idea that it has to be sequenced a certain way. if someone came in and were undisputed he did not satisfy the adaptive functioning pronged then you wouldn't necessarily look at i cue. >> did i misunderstand the case, the florida court held in effect

my words, the iq was a threshold in order to make this inquiry, you have over 70, you cannot make a showing. please correct me if i'm wrong. >> what happened in this case is there was a motion by the united states recognizing that the iq scores at issue were above 70 so it was an ordinary evidentiary motion, if you had a different case where you had to approve causation and damage -- >> if you did not satisfy prong 1 you did not get to prongs' 2 or 3, period. >> by the same token if you don't satisfy prong 2 you wouldn't get prong 3 or someone. the evidentiary ruling was simply a recognition you have to satisfy all three prongs' which again is a factor -- >> under the law of florida, a similar case, an i.q. score of

71, the prosecutor pointed out to the judge, 70, the defense lawyer says your honor, i would like to bring in my test expert here who will explain to you that even though this test did show 71, there is fairly small but significant probability of error and it could in fact be as high as 76 and would like to explain to you that that is the situation and therefore can i testify? does the judge have to let him testify or not? >> if i understand the hypothetical, test score of 71 so without and obtained test score of 70 or below -- >> this is a dispute in the case. they would like to present that expert and you would say no. >> i just want to be sure but to my first question which i won't repeat, this man has been on death row 35 years. >> 1978 was the act.

>> ten years after the first conviction? >> that is right. raise in the hitchcock setting in the 80s. >> it came this long. 1978 is when he killed this woman. >> number of appeals -- >> in general, the last weekend people florida has executed has been an average of 24 years on death row. do you think that is consistent, the purposes of the death penalty consistent with administration of the justice system. >> i think there are obvious -- >> i am sorry, i apologize. >> is it consistent with the purpose of the death penalty it was designed to serve and an

orderly administration of justice? >> it is consistent with the purpose of the death penalty. >> maybe you should ask us in as much as most of the delay is because of rules -- >> let me ask -- >> most of the delays at the end of the event in this case was five years before there was a hearing. has the attorney general of florida of suggested to the legislature, and any statutes to expedite these cases. >> the time adjusted factor adjusted the number of issues and presently being challenged in the florida supreme court. >> the policy, the administrative convenience, tell

me why you have the policy. >> the people florida decided it is an appropriate punishment for the most horrific crimes. >> why you have the 70 threshold? >> that is what i was getting at. florida has an interest, even execution because of mental retardation, people who are mentally retarded. if we apply the rule suggested it would double the number that are eligible for the exemption and that is consistent with florida's purposes of the -- >> that is to say double the number of people eligible but some may be mentally reads started. we want to ask their -- >> we do certainly and they are not mentally retarded with an iq of 70, that is the position -- >> they don't have an iq score.

and their mentally retarded. one prong of the three prong test. >> the threshold is the first roll. here in this setting, you must have clear and convincing evidence you have an iq of 74 below and what we believe is if you say there is a 90% chance that i iq is between 68, and 78 you have not satisfied that first prong and i would like to talk about the 90% because it is not the case the you have with 72, 95% chance that your iq is 70 or below, it is a very small chance. it measures the 95% chance that your true iq is within five points of the measured iq but it is not the un equal chance of 76, 67, 68, if you take the test over and over again you score

near the bulker of most of the time which is where your true iq would be. into that 95% threshold, very small likelihood if that is your true iq and with each additional test you take, the odds would go down. it is simply not the case that you say he has 72 but he is satisfied or might have satisfied the first prong because as a statistical matter, as of factual matter, every test he has taken that was admitted as evidence was over 70, 71, 72, 73, 74, if you apply statistics to let you have to look and say what are the odds that group of testing that is true i q is under study? is it possible? it is possible it is over a hundred. you can exceed beyond 95% confidence interval and nobody disputes that the true iq is

something that is incapable of being measured. the i.q. test is what the community has and it is the most objective of three prongs' which is why we believe it is important to focus on because it is the most objective test the we have. >> how many states retain their practice with this rigid 70, off? >> by our count there are eight states that have a hard cutodd and 70 standard deviations of this >> how many have a fixed cut off and how many have sem? i thought was only four? >> all eight have a big cut off of 70 or two standards -- >> like a judicial decision to

be considered. >> in most of the instances florida has had a statute that was interpreted by the courts. >> that is what i am saying. only four have been interpreted. >> i apologize. >> i thought only four had interpreted without using sem? >> interpreted statutes without sem kiki >> only four like florida. >> we have alabama, florida, idaho, kansas, kentucky, north carolina, virginia and maryland which has repealed the death penalty but that was their standard. we would ask respectfully the court affirmed the florida supreme court. >> thank you, mr. waxman, you have a minute remaining. >> in state versus cheri which is the florida supreme court decision that established this rules that if your lowest score or your only score is 71 you are out and that applies with you take one test or multiple tests.

i am quoting from the supreme court's decision, quote, is a universally accepted given that the sem is a universally accepted given and as such should logically be considered in determining whether ed dependent has mental retardation. what the court said it was we have to read the plain meaning of the florida statute and the florida statute says two standard deviations. one notion that the florida legislature -- may i finish my sentence? the florida legislature is the people of florida have made it considered decision not to account for the sem is baseless and is the lie by the legislative report that accompanies the statute which said 70-75. ..

>> to add history and context to the current situation between russia and