watch on demand at c-span.org or listen on our free c-span radio app. the u.s. supreme court last month heard oral argument in the case moore versus texas. a case questioning that state's criteria for determining of an intellectually disabled person can be sentenced to death. in 2002, the supreme court ruled that executing a quote mentally retarded person violated the constitution's eighth amendment ban against cruel and unusual

punishment. this argument is an hour. >> argument this morning, moore versus texas. mr. sloan? >> mr. chief justice, and may it please the court, in atkins versus virginia, this court held that the eighth amendment prohibits executing people who are intellectually disable end in hall versus florida this court reiterated that the inquiry into whether somebody is interlecture little disabled for that important eighth amendment purn shou should be informed by the diagnostic framework and by clinical standards. texas has adopted a unique approach to intellectual disability in capital cases in which it prohibits the use of standard and relies on harmful and inappropriate lay stereo types including the so-called pri sinal factors. it uses an extra ordinary virtually insoup perable and

chitically warranted cause asian requirement and most fundamentally it challenges and disagrees with this court's core holding in atkins. namely that entire category of the ipt lek actually disabled, every person who is intellectually disabled, is exempt from execution under the eighth amendment. >> excuse me. >> that's long laundry list of objections you have. your question focused on one, which is requiring outdated medical standards and i think that several of the other point you made are not encompassed within that question presented. maybe they are questioned that should be looked at but they don't seem to be covered by that. you mentioned a correspondent with clinical practices. has that changed? does texas similarly depart from clinical practices under the old

standard as it is under the new? >> it did. the prohibition and use of current medical standards aggravates and exacerbates that. but if i could address your honor's question about the question present. i would like it make two points with regard to that, your honor. first of all, it is woven into the texas court of criminal appeal's decision and the judgment that is before the court. because the texas court grounded and in using current medical standard in the pri sinal framework and the court said what we decided in 2004, that framework governs including the clinical standard at the time but also its view that medical proceedings, and it is very important in the court -- >> well, i have the same question as chief justice. it just seems know the question presented doesn't cut to the heart of the case as you

describe it. >> my understanding of your argument and again i don't think it is wholly reflected in that question is whether you use the most current or even slightly older medical standards, there is still a conflict. am i right about that? that that's your theory? >> yes, your honor. if i could add one point, though, it is that the current clinical standards accentuate the conflict and make it even more clear. and what has happened with the -- >> we wouldn't need that, would we mr. sloan? we could say that standards are are in conflict with the old at kins standard as ael wz nwell a onees. there wonuldn't need to be a ne one. >> that is correct. >> but a little more eye-catching is that they prohibit standards and rely on

outdated one. that's all it says. i'm just wondering if you got yourself through the door with a dramatic question presented, and are now going back to a concern that was just as present as i understand your argument under the old standards. >> so two point on that, your honor, first again, as i was saying, it is woven into the court of criminal appeals decision one cannot look at their judgment on the prohibition of the use of current medical standard without looking at the framework in which they grounded it. but secondly your honor -- >> i'm sorry to interrupt mr. sloan, but can i make sure i understand that? because what you are essentially saying is that the court of appeals says you are barred from using new standards. you must use the percentages yoes standard. so the two were flip sides of the same coin. what the holding was is that you must use percentos standard. your qp pro fekt their framing of the issue, you can't use new standards, you must use

percentos standards. you were reflecting their essential holding which is we have this percento case and you have to use it. >> that's exactly right, your honor. >> then why didn't you say that? it talks about current and outdated. it is pretty dramatic and you are only using outdated. it is quite a different question. they use the presso standards and they shouldn't. you don't think they should use old standard under the old medical standards, do you? >> no, that's correct. but we absolutely stand by it because they have prohibited use of current medical standard and instead required the use of 1992 standard -- >> let me ask you the same question in different terms. you can tell me that, this is not a fair paraphrase. if you could give me a yes or no answer to this question, i would appreciate it. the state must use current medical standards to this standard dsm-5 as compared to

older standards, dsm-4. yes or no? >> no, with that wording, your honor. >> then i don't know how you can recover on a question that you can prevail on the question you presented us to. >> because your honor, the question presented talks about prohibiting -- if your honor had said can a state prohibit -- >> i don't understand what you mean by prohibit. you mean prohibit the lower courts from using a standard different from the one that the court of criminal appeals has said is the stand hard to has to be used ef where in texas, so each trial level judge would apply a different standard, whatever that judge thinks is the right one? >> and that the court said prospectively, the law of texas is that you're prohibited from using the current medical standard. >> you think that if this is a question of trial court discretion, the trial court has the discretion to use the newer standards as opposed to the standards that the court of

criminal appeals says are the appropriate ones? >> no. i don't think it's discretion. i think the court prohibited. the court said that state habeas trial court erred by using the current standards. >> as opposed to the one that court of criminal appeals itself adopted. >> from 1992. and so, it is helpful to consider if the court of criminal appeals decision stands, how -- >> mr. sloan, to cut to the chase of the underlying question, was the criminal court of appeals using any clinical standard? medical clinical standard? >> no, your honor. >> mr. sloan, i don't think you finished answering my question. there are two, let me rephrase it this way. there are different things in the per sanno opinion. one is the medical standards that are taken fromsanno opinio.

one is the medical standards that are taken from from the medical publications current at the time and then these additional considerations. and that's what's regarded as the persanno factors. disregard the latter. the first part are current -- are medical standards that were current that time. are they not? >> well, i respectfully disagree, your honor. in this respect, because what the court said in perhe is noto, is that after talking about following the 1992 standard, it said we review the standard as exceedingly objective. that's what the court used in the perhe is noto, and that's why we use nonclinical, in fact they are anti-clinical, because they are based on the lay stereo types and that's what court said here as justification for prohibition and the use of

current medical standard. it is just if i kalgs ification to the petition appendix is the court's long standing view about the subjectivity surrounding the medical diagnosis of the intellectual disability which stands in sharp contrast to what this court said in atkins and in hall. where in atkins the clinical definitions were fundamental as this court said in hall, clinical definitions were a fundamental premise of hall. as hall said, the inquiry has to be informed by the medical community framework and there is no way it can be informed by the medical community's diagnostic framework if the -- if there's an exclusion and prohibition and using current medical standards. and justice -- >> and there is no doubt about what the texas court said. it is more to texas court, it said the habeas judge errored by

employing current clinical definition of intellectually disabled, there in that respect, the test we established in percento, is a stated sharply and clearly as what must be implied by texas courts. is that how you read it? >> yes, exactly, your honor. >> on page 6a. >> yes and it is helpful to understand how atkins adjudications and this is a vitally important life or death issue that goes to the human dignity of the disabled and how the adjudications will proceed in texas after this opinion in light of the passage that justice ginsburg just quoted, the critical passage is that to judges, to lawyers and to clinical experts testifying in texas the message is clear and unmistakable, you may not consult or rely on current

clinical guidance. and to think about that from a clinician's perspective. a clinical expert who has been entrusted with evaluating and making this vitally important evaluation of somebody about whether or not they are disabled, that is the clear and unmistakable instruction and will by the lawyers. you have to go back to 1992 standard. you can't consider the standard since then. >> mr. sloan, i think it's more than that. it is not just you can't consult current guidance, you have to go back to '92 standards. it says you have to go back to persanno and there is seven factors that are not consistent with the old standards just like they aren't consistent with the new standards. >> that's right, your honor. it is also interwoven with percento itself. where percento has framework where it says the only severely intellectually disabled are exempt from the death penalty and it is an open question, whether those who are more

mildly intellectually disabled on mentally retarded as they said at the time, are similarly exempt. and this court just held there is a bright line exemption for the ipt lek actually disabled. >> i tried to ask myself if the court could use the percento factor's first and of that if you find no intellectual disability, then turn to the clinical standards. but as justice kagan point out, i think there's a conflict. >> there absolutely is. and it is rooted with the clinical standards and prohibition of current clinical standard and hostility to medical standards -- >> but it is true there is discretion left to the states. what is the rule that you propose for how closely states standards must hugh to medical practice? >> i think it's the rule that court announced and explained in

hall which is that the state must be informed by the medical community's diagnostic framework. so what i understand that to mean is that, and of course, as the court said in atkins and hall and brum field, the clinical definitions are very, very important. you have to inform it. and if a state wand to conflict with or disagree with clinical standard then there has to be a sound reason for doing so. and i think in hall this court identified several considerations. there are four considerations in particular that would go into evaluating whether there is a sound reason for doing so and the first is they are generally a consensus on that point. what do other states do on that point? the third is what do the states he do in other intellectual disabili disability complex and very tellingly here texas uses the factors and prohibitions on current medical standard only using death penalty context and no other context. as the court explained in hall

the condition as court said in hall, of intellectual disability has applicability far beyond the death penalty and so when a state does a texas is doing here treats it very differently with much more severe restrictions on finding -- >> mr. sloan -- >> pardon me. >> justice sotomayor? >> can we go to the practical application of what you're saying for a moment? take the decision of the cca here, all right? the two prongs that mr. moore had not met that he couldn't prove that was clinically intellectually disabled. that his iq was higher than what was generally recognized clinically. what did they do wrong with respect to that call? and secondly, with respect to the adaptive function prong what

did the court below do wrong? identify the two ways in which what they are doing and how they are applying the standard we're talking about were in error? >> i will, your honor. and as to both, they are in very sharp conflict with clinical guidance generally and especially with current clinical standard. so beginning with the ipt lek actual deficits and iq, court of criminal appeals accepted as valid an iq test of 74 which is as the court explained in hall with the standard error of measurement, taking it down to 69. well within the range for intellectual disability. but what the court did here is that it chopped off the lower end of the standard of measurement and treated the 74, the number 74, as decisive and it in and of itself determining that mr. moore could not establish an intellectual deficit and could not establish

intellectual disability. and this decision in hall. the reason the court gives for lopping off the end of the lower end of the near umeasurement ar unsupportable. of course that's not inconsistent with an intellectual deficit or disability. the court says he may have been depressed because he was on death row. there's no rule that if someone is on death row you cut off -- >> there's no medical rule to that. >> that's right. >> no medical support. >> no medical support. no core basis for that. what the court views as a depressive episode from 2005, 15 years after he took the test in 1989 -- >> well alleged there by viewing your briefs, were that it assumed that things like

poverty, poor nutrition, poor performance in school was not attributable to intellectual functioning but to his lack of a good home, essentially. why is that clinically wrong? >> because, your honor, so in terms of the causation requirement, which is what i think your honor is referring to, and there are -- there are three major problems with the way the court dealt with causation. >> i think the courts -- would you say something about the adaptive behavior? i think that may be a stronger leg. >> why don't you deal with justice sotomayor's question first. then justice alito's. >> thank you, your honor. so in terms of the causation, first the court says on page 10-a, intellectual deficits caused it rather than some other

cause. like the causes your honor is talking about. there is a very high incidents of multiple causation, so that view of the inquiry is rather than some other cause is completely at odds with the clinical understanding to begin with. secondly, factors of the court points to include things in addition to what your honor was saying like again poor academic performance, terrible childhood abuse that suffered, which not only do not detract from a finding of intellectual disability, they are well recognized as risk factors. and third and very importantly, is the aaidd explains in its brief, from a clinical perspective, there is absolutely no way to make the kind of showing that the court requires here about rather than some other cause as a clinical matter, simply impossible to do. this court in hall talked about the risk and threat that atkins

would be turned into annulity. there is no question that it turnses it into a nullity. >> now maybe you can respond to justice alito. >> sure. it is important at the outset to recognize certain points undisputed in the record. it is undisputed that at age 13 mr. moore did not understand the days of the week, months of the year, seasons, how to tell time, principle that subtraction is the opposite of addition, standards units of measurements and other deficits that are undisputed. >> what is their problem with that analysis at that point? >> there are four problems, your honor. one of them is that the court focuses on what it perceives as some strengths which it says outweighs deficit. >> is there a sense in the medical community that that's improper? >> yes, your honor.

>> here is an article written by a number of experts, recent article from the journal of american academy of psychiatry and the law, assessing adaptive function and death penalty cases with hall and one was cited in one of the briefs by a professional organizations in hall that says that any assessment of adaptive functions must give sufficient consideration to assets and deficits alike. so what do you make of that? these are just -- are these quacks? this is dr. hoguen droan drogen mett. >> in their definitive clinical guidance that comes out once every ten years is very explicit that adaptive deficit inquiry focuses own deficits.

and not on strength. and for two very, very important reasons. and the first is that clinical inquiry, when someone is impaired in their daily lives so focussing on impairments and second reason is that there is a very common stereotype and misunderstanding that if someone has strength they are not disable end that both of thoser to tatiauthoritative -- >> if both organizations, but i suppose a majority vote or something like that conclude one thing, but there are respect experts who disagree, you say the state is obligated? as a matter of constitutional law it follow the organizations? >> i'm not saying that yb your honor. as i said to justice kennedy, hall identifies if the court will disagree. first one i mentioned is is there a clinical consensus -- >> you might be talking about two different things and i might

be wrong about this. as i understand adaptive functions there are these particular areas of functioning that have been set out. and with the consensus is, is to say, well if you have deficits in four of these areas it doesn't matter that you don't have a deficit in another area. and that's what the consensus is. now within each area, people, psychologists, can look at, you know, within an area to determine whether you have a deficit. yeah, you have to look at what can you do and what you can't do to decide whether there's a deficit in that area. so the two things might not be in conflict at all. >> that's exactly right, your honor. or if there is a dispute for example about a particular skill. somebody says he cannot drive, proof on the other side that yes that the person can drive. >> so the question, i don't think can you answer orally, but i think that these cases, that you can point me to the answer, that's what i want.

look, there will be a bunch of easy cases. and then there are going to be cases like your client. who has been on death row for 36 years. and there will be border line cases. and the reason they are border line is because the testing is right at the border. like an iq test. then you will put weight on what's called related limitations in adaptive functioning. a matter that on its face sounds as if it may be easy in some case answers tou cases and tough in another. all right? what is a court supposed to do? are we supposed to have all those hearings here? i mean, you've made very good arguments for your client. you're probably several others in the country in different states which may have different standard. and if you have some view that the law in this area should be law, ie that it should be

uniform across the country, point me to something. that will tell me how a distrikt judge should go about making this determination. in border line cases. >> yes, your honor. >> my suspicion is there is no such thing. that's why i ask, there might not be. >> let me make two point. first of all, your honor, what do courts do? and i do think it's prnt that general principle this court was clear about in hall is being informed by the medical -- >> understand that what you are saying, whatever they should do, it shouldn't be what is here. okay. i got that point. i'm asking a different point. and if you want my true motive, i don't think there is a way to apply this kind of standard uniformly across the country. and therefore there will be disparity and uncertainties and different people treated alike

and different people alike treated differently. that's my whole story. i want you to say no, you're yon wrong. there sway to do it. what? >> your honor, i think the best places it look on this would be the aaidd current manual, 11th edition, as well as pages in the dsm-5 that address it. and it points up for different standards. for the first time, the 11th edition -- because of the problem with stereo types that if people have strengths they can't be considered intellectually disabled, for the first time, the current edition, very one the court said was off limits here, has an entirely new chapter in chapter 12 about the issues and problems of people who have high iq who are

intellectually disable end at the high end and exactly the group that your honor is talking about. and accompanying this for the first time has a list of harmful stereo types which includes exactly that. the other thing that i do have to emphasize is that what everyone thinks about the application across the country, there is no question that texas is very extreme and stands along in its view that, of basically disagreeing with the core promise of atkins and repeatedly in its decision drawing extinctions between those are severely mentally retarded and those who are mildly and saying there is no skeexemption for th who are mildly. and the court of appeals says our task is to decide what a consensus of texas citizens thinks the line should be. this court in atkins had just

decided for ageeighth amendment purposes the consensus of united states citizens. your honor, i would like to reserve the balance of my time. >> thank you, council. general keller? >> thank you, mr. chief justice. may it cleef the court petitioner conceded we could have used dsm-4 instead of current dsm-5 that answers the question presented and petitioner in the brief says there is no difference in language in texas's standard based on the aamr ninth clinical framework and current clinical framework. this case shifted to a discussion of the seven persono evidentiary factors. the seven factors are grounded in this court's precedence as we point out in bullet pages of 53 to 55 of our brief. that what those go to is the second prong, adaptive deficits inquiry. all of those questions are

asking, can someone function in the world. that's precisely what pennsylvania supreme court noted when it also endorsed the per sanno factors. >> you describe these as coming from some source.persanno facto. >> you describe these as coming from some source. but persanno listed the seven bullet points and didn't give a single citations of where anyone came from. >> it did, however this court, and pages 53 to 55 of our brief we go factor by factor and quote this court's precedence to show how they are congruent with factors this court itself considered and petition appendix 162-a the trial court adopted petitionals conclusions of law and that said that analyzing the facts under that second prong, even under the current aidd 11th, quote answered many of the persanno factors unquote. so the analysis done under the second prong of the framework, adaptive deficit prong, that will overlap with the factors.

this is not a free floating test that negates or offates the three-pronged test that texas uses and is part of the national consensus. >> would you agree with this, that the texas court of criminal appeals in persanno and other places made the clear its view that the texas can choose to execute people whom a complete consensus, 100% consensus, of clinicians would find to be intellectually disabled. would you agree with that? >> i don't believe that's what persan why opinion says. what it said is that it would adopt clinical standards. >> i'm asking about persanno and other court of appeals decisions. and i thought that you said this in your brief, that your view of the point of state discretion is that a person who everybody -- every clinician would be intellectually disabled, the state does not have to find to

be intellectually disabled because of the consensus of texas citizens would not find that person to be intellectually disabled. isn't that premise of the court of appeals decisions? >> no. quite the contrary. let me very clearly state about the texas consensus language in the opinion. the persanno opinion flags the issue about what a texas consensus materialize on an issue. but the court then twice says it wasn't going to answer that question. it was not going to do that. that is for the legislature. insaid it what it did is adopt the standard in the texas health safety code -- >> i guess i just don't understand it. and i really don't understand it in light of your brief, which i will start to quote pretty soon. it seems to me what the texas court did is say look we are going to accept the three dimendimen didimensions, adaptive deficit, iq and age. but with respect to quality and degree of impairment, i think

that's their language, we're not going to accept the clinicians view so that people with mild impairment can be executed even though the clinicians would find those people to be intellectually disabled. >> persanno adopted case answers in cases since then -- >> i know it passed the three-prong test. the question is the degree of impairment within each of those three prong answers again it seems clear from your brief when you're talking about atkins didn't establish a national standard that you're saying too that texas -- and i guess i'm surprise by that by saying the texas courts need to follow clinical assessments of intellectual impairment because that's not what you say on pages 19 and 20 and 21 on your brief. >> it is true this court recognized there's a difference between a legal determination

regarding eighth amendment called ability and medical diagnosis but persan why adopted amr-9. >> i'm sorry, good back to justice kagan's question. >> well he was talking about my question so go on. >> thank you, justice kagan pt even with amr-5 this court sited that exact language in versions so in it is not the chase states have to categorically wholesale adopt the position of current medical organizations bhau persanno did was in fact adopt the aml ninth. the precursor to the 11th and the commissioner applied brief says there no material difference between the 9th and 11th difference. that's why we aren't talking about the face of the amendment, we -- >> well i have a physical up unless you want to go, justice sotomayor. >> justice kagan, please.

>> let me take one of the factors. it is what lay people think about the person growing up and relative to the assessment of adaptive function. no clinician would ever say that. clinicians say no that is like stereo typical lay person view of adaptive functioning which is different from the clinical view of adaptive functioning. but the persanno factor is clear that sort of .1 that you're supposed to rely on what the neighbor said. and what the teacher with absolutely no experience with respect to intellectual disability said. so that seems to be a very big difference between the persanno factors and clinical view of intellectual disability. >> and clinicians would also look those and in fact there is testimony at the penalty phase

retrial about people, lay witnesses that knew petition eater the time so it's not that this is irrelevant evidence. now it's not go tock necessary dispositive. that will depend on the totality of the circumstances and the record on adaptive deficits. but this is probative efd -- >> well this could trump everything and it says this could trump everything because of the underlying view of persanno and other will texas v and -- >> no, persanno did not say it could trump the three prong that texas consistently applied. >> i'm sorry mr. general keller. the three-pronged definition tells you have you it look to iq and look to adaptive functions and to youth. it doesn't tell you anything about what quality you look to and the extent of impairment within those factors.

that's where the texas court insists on its freedom to go out on its own. >> may i note as a footnote only, can you continue, that in ex party, the cca sent back a caseey, the cca sent back a case, the cca sent back a case by ektidirecting the lower court even though that court analyzed the case, the kril ccr phase, it pairs to be acting as if the persanno factors are the clinical factors and are controlling even though they are stereotypes built into them. >> they are not stereotypes built into them. >> well the dma and all of the other clinicians that some mentally disabled people can have some adaptive functioning. idi idiot is idiot savans, for example. if s it your opinion that if

someone can do math in their head that they aren't intellectually disabled. >> no -- >> how about if that same person has a a job in nasa calculating the airspace shuttle launches. is that person not intellectually disabled simply because they can use that particular skill in a way that gains them employment? >> no. and what texas standard says is it looks to actually the current framework and says for adaptive deficit you look at concept actual aep practical skills. but if i can address sosa, the cca reversed because it was categorically prohibited from looking at the facts of the crime. it doesn't say you had to use the persan why factors -- >> we're not reviewing sosa. can i ask the question about what the court did in this case? on pages 62-a and 63-a of the petition, appendix to the petition, it sets out three factors. then discusses those at length. on page 89, it says in addition,

our consideration of the persanno evidentiary factors weighs heavily against finding. so is it clear that these evidentiary factors actually played an indispensable role in this case, which is what we are reviewing? ? >> no, they did no>> no, they d. in the body of the language it is talking about heavily weighted on the -- there was analysis that there was sufficient intellectual functioning on the first prong and deficits compton's testimony said i do not have the def sis to find a diagnosis and that is before -- that is a sufficient base to basis to affirm without getting into the persanno factors. >> are you saying that the persanno factors capture all individuals with intellectual

disability? >> no, the persanno factors, there could be other circumstances or other facts in the record that would bear on the prong. that's why cca said these are discretionary. different ways of phrasing how you dot conceptual -- >> it is a huge problem in this area. because if you let one trial court judge apply it, and another one doesn't have to apply the menu, then you're opening the door to inconsistent results depending upon who is sit op sitting on the trial court bench, something we try to prevent in capital cases. >> justice ginsburg, it is discretionary, what the cca said, and the trial in appellate courts may ignore some or all of them if they are not helpful in a particular case. this is just looking at the record. is there evidence on any of the

factors. if it's not, that's not helpful this that case. justice ken dwib as far as the number of people that would or would not be covered by the factors, the cca used persanno to grant relief and they also affirmed trial court decisions -- >> but the thing is, of the petitioner's brief, that persanno factors are intended to really limit the classification of those persons with intellectual disability and defined by almost uniform medical consensus. >> and cc has never said that purpose of these factors is to screen out individuals and deny them -- >> isn't that the effect? >> no. allstein granted relief by looking at persanno factors. four cases just mentioned -- >> well, general, there are going to be cases in which the per sanno factors show that they are disabled but that's not the question. the question is can they be an exhaustive list?

>> the persanno factors are not an exhausted list and they have never been treated like that. >> but the percentage of these factors was that the court said the clinical standard are just too subjective and they don't reflect what texas citizens think. both of those things. they are too subjective and they just reflect what clinicians thing, not what texas citizens think. that's the genesis of the standards. which suggest that justice kennedy is right about how they operate and how they are intended to operate. >> the court did mention subjectivity. the consensus is not part of the baitsis to do that pap what the cca was trying to do is take the adaptive deficit prong. in the phrase of limitations and adaptive functioning and put that into concrete terms where can you put it into a record. >> there are two things wrong possibly with the factors we've heard. one i can't deal with at this

moment in oral argument. can you go through them, they are in the briefs, one by one, and say reading them, they are not consistent with or reflect error when compared with the psychologis psychologists think. i can't go further with that here. the other is the question of why did the texas court write these. i have to admit in reading through persanno, i came to at least pause when i read the word, that they are trying to figure out what to do in border line case answers what they've done is not, you know, i understand it. but they say we have to figure out the level at which a consensus of texas citizens would agree that a person should be exempted from the death penalty. when i read that, and when i read there are other word, ots on page 6 of the reported opinion, when i read other things they said, i thought that well they are trying to do this

which we do often if law, but what's the purpose of this? the whole purpose is to try to figure out who not to execute because of their functioning. the way they function. that's the purpose. let's look at what texas citizens would think about this person and let's try to get standard that reflect that. i really did think that's what they are trying to do in their opinion. they are arguing that's the wrong thing to try to do in this instance. first produce nonuniformity among 50 states. among the states that have the death penalty. and others are not who the states think about who should be executed. that has nothing do with it. oddly enough. in this case what has to do with it is a technical matter about this individual that would free some while subjecting others. to the death penalty irrespective of what texas citizens think. so do you see my question? what are they up to in this

opinion? i think they were up to going back to the citizens of texas. you saw what i think they are up to. >> you tell me if i'm right, wrong or what. >> i believe that's mistaken because there are two point after that discussion of texas consensus where the court said and this is persanno. and the court of individual cases, we decline to answer that question about the texas consensus without significant greater assistance from citizenry act between legislature. and legal determination and medical diagnosis and court says that question is not before us in this case because it goes on to adopt the aamr ninth clinical standard. >> mr. general, is it your view that what texas is trying to do is to determine who is on the

critical border line as opposed to trying to determine the type of mentally disabled and that it thinks it should be executed? >> yes. >> is it fair to say that in texas a mildly disabled person is unlikely to be considered disabled by the cca under the persanno factors? >> no. if there was a diagnosis of disability, even mild -- >> that is one of the cases that you sited to me where someone was clinically diagnosed as mildly disabled, and the ccacsi was clinically diagnosed as mildly disabled, and the ccaite was clinically diagnosed as mildly disabled, and the cca said under the parsanno factors that they should not be executed. a lot of cases you provided me

with, there was moderate and mostly severe but moderate to severe disability but is there anyone with mild disability that the persanno factors would find sufficiently disabled? >> well, the case that i can point to for the cca looked at the persanno factors and granted relief. >> did they find him mildly disabled? >> the testimony there is on adaptive deficits and i believe the mild, whether it is mild or moderate goes towards more iq scores. the question is whether texas is prohibited current standards from being use and is airing by outdated standard. texas is not prohibiting the use of standard. >> why did it go through so much trouble in saying that it wasn't going to use current standard? that it was only using older standard and persanno factors? >>. >> because the current standard

does not have the related he inquiry. that is nan extraneous part of case. that's the main reason why they said trial court you're not following our -- >> i understand the degree of relatedness has no support anywhere. would that have been a valid reason for discounting the current clinical standard? as that that's a second alternative holding here. it is valid for texas and other state to have the requirement. that's in the dsm-5. they talk about being directly related but doesn't flush that out. so we are talking about the application of that and this is an odd case to decide the issue when the second alternative holding and no state on this causation point. that's the coleman case from the tennessee supreme court sited in the reply grief. we are not aware of any case this which the relate udness inquiry is the point in which the atkins case was denied.

>> i'm not sure how i can accept your characterization of the cca decision when basically it's saying, his poor intellectual functioning and iq test which happens when he is younger were not related to his intellectual abilities. they were related to his poverty, his morbidity factors. if they're saying that, how are you saying they weren't finding that he wasn't intellectually disabled because of those other factors? >> well it just wasn't -- >> that's how i read their decision. >> it wasn't just the cca saying that, it was relying on testimony. >> wait a minute, testimony of co compton was having hooked at all of the iq tests, was i'm not sure. it is probable he is intellectually disabled by iq but he wouldn't qualify in my judgment because of his adaptive

skills. even the state's own expert said it was probable that he was intellectually disabled. >> the state's expert said it would have been bored her line on intellectual facing. this is a second court of holding the court doesn't have to reach. it looked at testimony from petitioners retrial in 2001 when petitioner affirmatively argued he was not intellectualed disabled and the petition ear own expert agreed -- >> that is do thatting that -- >> actually the a the time, henry would have been decided and there would have been >> and a valid basis to say and strategy which was a reasonable strategy from counsel and the expert agreed that the

petitioner was nowhere near intellectually disabled and so hah was to blame. >> regrettably until we stieded that mental disability was a ground to excuse execution that arguing differently was a better strategy. >> would have been to argue that. that's why it's a contradicting argument. regardless of that, they credited the testimony as the most reliable expert that's the only forensic psychologist. personally i evaluated for intellectual disability and i don't have the deficits for diagnosis. this was a fact bound application. the question presented here is whether texas is well established three pronged test

violates the amendment. and wholesale adopted one of the current frame works and there's no material difference in the language to the current frame work. >> to determine whether it's a school or fully disabled or a juvenile offender to determine what to do with that offender. texas applies a different test and current medical standards in both of those categories. a different standard only. >> the discharge rule that petitioner sites actual lay don'ts the three prong test that

he adopted. that's the administrative code. 380.877 c1. there's others that incorporate the latest manual of the dsm but as it noted there's an ill perfect fit between a determination of legal -- legal determination in a medical diagnosis and since you have the different purposes it is valid for a state to have a different definition of when someone is morally cuplable. >> that's exactly the point. that's the point we were making or at least i thought we were. it's to help determine which persons suffering borderline cases of mental disability ought to be executed or should not be because they are less morally

culpable. i do think that's what they said. that does supply reason for making differences as he just pointed out. then the question is, is it the purpose or was it to give each state the right to decide in border line cases whom or whom not to execute in light of their feelings about capital punishment. i thought it had a different purpose. unusual in the law but which was to appeal to technical definitions of who and who is not mentally retarded or intellectually disabled. that's a real issue. but i think that this case does present that issue. >> and what they said is there's a critical role for the states and while states don't have discretion they do have some discretion and every time the dsm 5 or the next edition comes out the states don't have to

automatically wholesale it up because there's a well established test. this test existed for 50 years and the states, there's a national consensus adopting that test. not a national consensus against the relatedness increase. there's not a national consensus that the various factors can't be applied and no state prohibits it. three of the states that use the wholesale to current frame works still look at strengths with the hack ket case from pennsylvania is the best example. >> well the problem is that as i read this, it's looking at adaptive strains only and not deficits. and looking at how they form intellectual ability. the states expert testified that

he could not from memory recreate a clock. he says i don't quite believe that but she doesn't quite believe that of a person who at 13's father threw hill out because he was dumb and illiterate. couldn't tell the days of the week. couldn't tell the moss of the year. couldn't tell time. couldn't do anything that one would consider within an average or even a low average of intellectual functioning. this state's opinion does very little instead of saying those are products of his poor environment. they're not products of his intellectual disability. >> no, when she did not have the adaptive deficits in addition to analyzing and she said there are limitations i see whether it's

academic abilities or social skills but there has to be significant limitations and she said that wasn't there. she noted four different times in the course of these proceedings and found the motions and was responsive to questions and was understanding what was going on. >> the factors were fashioned after, he was working on a farm. how is that different from mowing a lawn? and the state had no problem in saying that even though he could work, earn a living, planned his trying to hide the depth of the rabbit he killed and he could do all of those things and yet he was not just mildly but severely disabled. why is the fact that he can can mow lawns and play pool

indicative of a strength that overcomes all the other deficits? >> lenny was never part of the test. it's not part of the test. it was in the opinion and the court said it was not going to address the second questions that adopted the standards. >> but informed his view of how to judge a lack or strength of adaptive functions. it used the standard. >> no it did not. >> we could see that not only from the fact that what happened was the lenny photograph was an aside and the court adopted the clinical standards. and that's one of the most misunderstood aspects of this.

>> here's what i have come up with, what you're say as good that the texas court of appeals is complying with atkins because it uses a three pronged test focussing on iq and adaptive function and age and within each of those prongs in order to make this distinction between clinical disability and moral culpability the court can choose how to apply it and particularly what levels of impairment to use. is that a fair assessment? >> i don't believe so. >> even on the adaptive prong

analysis that's going to account for skills as he actually adopted the current standards. >> thank you, council. three minutes mr. sloan. >> there was discussion in relation to the criminal standards in the court of appeals decision and i would suggest they look at the american bar association brief because it goes through three decisions of the court of criminal appeals where in each of the three decisions and it was unanimous that the texas courts used the factors to conclude he was eligible for execution notwithstanding the expert testimony. my friend said that icon seeded that they could have applied the

dsm 4 and rejected the dsm 5 just to be clear and just for the record i did not concede that and if a state is going to reject consensus in the current clinical standard as in that example then there would be a number of factors that the court would look at and what i didn't get to is the absolute requirement to ensure that somebody that's intellectually disabled is not going to be executed. the chief justices initial question about the question presented in addition to the fact that as we did discuss it's innerwoven. we repeatedly used the phrases like nonchin cal, unscientific

and the state in it's opposition rested heavily on the factors. there's a few pages of the opposition that are specifically directed to that so that was very extensively discussed in the papers at the time. and then dsm 6 comes out would it be your position that those states all have to go back and reconsider what they're doing? people using their best clinical and medical training to refine and sharpen the tools to

identify to people. >> and they have been from the day but it is even more clear that they were inconsistent with clinical factors in light of the current clinical standards. my friend was suggesting there's some question about it -- may i finish based on whether, in fact, there is a exemption for the intellectually disabled. he was suggesting it's clear there is and i want to call the court's attention to what the court of criminal appeals is saying. and the court said and i quote this court has expressly declined to establish a mental retardation exemption from execution without significantly greater assistance from the legislatu

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and not them and us coming to them. what inspired this? >> i spent a great deal of tile in the middle east trying to deal with the influence of social media.

the 15 attacks from orlando to san bernardino to the latest one at ohio state. what has happened is social media has become the oxygen by which isis is able to radicalize young men in order to commit terrorist attacks in the united states. what has happened here is that the social media companies. they directly call for the killing of americans and yet despite all my pleas and despite everything that i'm writing google, youtube, refused to proactively take down the most content that calls for the kilg of americans.

>> there is the mechanisms and the software that is able to police the website and take down not all the content of islamic sermons, particularly the sermons of the cleric that is most culpable of lone wolves but there's 62,000 hits on youtube alobe but there's at least 100 of his sermons that directly call for the killing of americans. it's those that i want google and youtube to take down but they claim that under the communications decency act of 1996 which was passed long before terror i feel occurred in the united states that they're shielded from content liability. >> which means anybody can put something there and they're not

held responsible for it. >> there's lawsuits filed in federal court particularly by a law if i recafirm that goes by of 1-800-law firm. they are are able to claim that google in particular is not only aware of this content but is also making money on it because peel that go online they're placing ads on the content seen by lone wolves committing these attacks. >> if you stop the content via social media, they'll find content other ways. >> let's put it this way. we're trying to make it as hard as possible for people to be radicalized online. you can never solve the problem

of what we get. and it calls for the killings of americans. after all laws have been passed to take down child porn off of social media. there's no first amendment rights to yell fire in a crowded movie theater. the supreme court has ruled on that but there's people that want to see the internet totally unregulated. now come on why should we put up with more killing of americans by lone wolves that are able to use the internet which has been weaponized by isis. >> 202 748 for independents. dealing with something along the lines of what you're advocating but this say story in the wall street journal saying the boston

police department taking heat from civil liberty groups for planning to spend 1.4 million on new software that scours social media and the internet for threats also inspired by the attack of the ohio state university but also concerns about civil rights and especially when it comes to civil liberty groups and what goes on the internet and freedom to do that. >> surely there are civil liberties advocates that haven't lost family members. that haven't been injured that do not see the ramifications of social media con tebt that calls for the killing of americans and how people are radicalized online by the content that i have seen provide recruiting for

them abroad and also in the united states. no one is suggesting here that will should be discretion to take down content. >> i pointed out five specific websites where content called for the killing of americans. five days later they took it down. is that censorship? they are taking down the content that we pointed out. the issue to me is not whether or not they are not taking the content down but there is software already available to do it themselves. >> is it so tailored that it takes down sites that would be offensive but not anything else. >> absolutely. this software has now been available. the counter extremism project run by the former alabama bass

d -- ambassador in new york developed the software technology. you go, remember how you would watch the daily show and they would show only specific clips of specific words, that content software now exists to police any website if you want to take down anything that says kill americans or go kill americans you can identify by that software. >> as far as the communications decency act. is that something that has to be made by congress? >> i'm encouraging the trump administration to seek an amendment to the communications decency act that would require silicon valley content providers that are shielded from content liability to take down the content. >> have you had a chance to talk to the administration? >> not yet but i'm hoping to

have a chance to do so. whether you're democrat or republican the idea that we somehow or other can do better to prevent online radicalization and to avoid having more loan wolf attacks in the united states is beyond my comprehension and this is something that any democrat or republican or independent should want to see happen. >> 202-748-8000. our guest was the former ambassador to morocco and also the former mideast advisor to president carter and currently the managing director for u.s. and international business. when it comes to this idea of fighting isis overall aside from the social media aspect, what do you think has been the record of the current administration on this effort? >> they arrived far too late to

the story so to speak. i doubt we would have seen it but for all the months and years that i have spent in the middle east the one thing i have come to understand whether it's al qaeda or isis, the threat of suni radical islam is a dangerous threat to the united states and even as the administration began slowly ramping up militarily the soft power effort to fight isis online has been a disaster. the state department failed and set up something called a global engagement center but even under that leadership it has not been able to thwart lone wolf attacks

in the united states or develop the right messaging abroad to try to stop the enlistment of young arabs to young isis. it's not problem problem to solve and this is a fight between suni and shite. the branches of islam and the rightful air to the profit mohammad. but we'll never solve that problem now that the u.s. military has to maintain a presence in the middle east specifically with concerns about isis. >> a agree and let's talk talk about the battle for mosul. who is going to govern them after we defeat this coalition

defeats isis. i don't want to believe that we have to engage in nation building but there has to be a way of solving the vacuum that is going to be created as a resu result. >> there's enough challenges that are going to cause problems in and of themselves and secondly the vacuum of isis being defeated doesn't solve the fact that isis is still a presence in the region and in effect we have to have a much more multipronged approach to defeating isis. my op ed is not just about isis but also many of the steps that we can take better to protect the homeland. >> first call for you comes from christina. she is in valley city ohio. go ahead.

>> there's a reason we don't have restrictions on speech. this is open to the public. we can listen to these heinous things, find out what they're doing to defend ourselves. we can't defend ourselves if these people, even if it's a small percentage, we become ignorant of what they're doing and what they're up to we need to know these things because we need to know how to defend ourselves. all the law enforcement agencies and all the people we call for help they get trained in this and listen to these things and see the horrible things that are happening to people. we need the free speech without restrictions so that we know how to defend ourselves. and we need to know how to do what they're doing. we need to be suspicious. could that be something that is no good? we're not going to know this if it's blotted out from our vocabulary. >> well, i appreciate the

comment and i'm talking about us removing content that's radicalizing young muslims in the united states to commit terrorist attacks against americans. at the same time there's unencrypted websites that continue to operate that the fbi is able to continue to monitor without any restrictions on content. we're trying to come up with a reasonable approach that protects americans from the online radicalization ceremon s

ceremonies. >> taking that content down is not going to make it harder to understand exactly what is going on online. >> from virginia, mike good morning. >> good morning. i'm wondering if your guests could comment from something that i heard that the google and youtubes of the world are resis tent from doing any of this work because if they're responsible from monitoring content from isis they would be responsible for monitoring content from folks violating copyrights and they would be financially liable in that regard. >> excellent point and yet in the conversations that i had with googles senior management the issue here is not that they're not policing. they already have in effect important statements of content control that they themselves already act upon so they themselves are acting as sensors whether or not someone like me is pointing out content that is

in effect calling for the killing of americans and so in this instance where in effect i have pointed out content to them that is already falls within the violations of their own statement of policy and they're taking the content down. they themselves recognize and violates their own statement of policy and they themselves were acting as the sensor on the content that someone like me is bringing to their attention and yet they themselves know it exists. >> let's say i were to take this exact conversation and put it on youtube. let's put copyright issues aside but according to what your guest wants to do, this would be bad

because it said kill americans and therefore it should be banned. you have some calls on the actual isis videos and you have wrong calls as far as someone like this that is your free speech. what do you do with the strange ones in the middle? someone saying some crazy conspiracy theory. >> there's no doubt and the supreme court has put restrictions on free speef and we don live in