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obama the story." watch live to noon eastern sunday on book tv on c-span2. ♪ >> the presidential inauguration of donald trump is friday, january 20th. c-span will have events and ceremonies. watch on c-span, c-span.org and the free c-span radio app. >> the nation's highest court heard oral argument in a case questioning the criteria in texas for determine thing if an intellectually disabled person can be sentenced to death. in 2002, the supreme court ruled

executing a mentally retarded person violated the constitution's ban against cruel and unusual punishment. in moore versus texas, the texas court of criminal appeals reversed the ruling, citing the use of current medical standards in defining intellectual disability, not the 1992 standards. here's that one-hour oral argument now. >> your argument in 15797, moore versus texas. mr. sloan. >> mr. chief justice, may it please the court. in adkins versus virginia, this court held that the eighth amendment prohibits executing people who are intellectually disabled. in hall versus florida, this court reiterated that the inquiry into whether someone is intellectually disabled should be informed by the medical

community diagnosis theic framework and clinical standards. texas has adopted a unique approach in which it prohibits the use of current medical standards and relies on harmful and inappropriate stereotypes, called the bresenio factors. most fundamentally, it challenges and disagrees with this court's core holding in add vince, mainly that the entire category of the intellectually disabled. every person is exempt from execution under the eighth amendment. >> excuse me. that's a long laundry list of objections you have. your question presented, though, focused only on one, which is that it prohibits the use of current medical standards and requires outdated medical

standards. and i think several of the other points you made are not encompassed within that question presented. maybe there are questions that should be looked at. they don't seem to be covered by that. in what -- you mentioned correspondence with clingal practices. has that changed? did texas similarly depart from clinical practices over the old standard as it is under the new? >> it did. the prohibition and the use of current medical standards aggravates and exacerbates that. but if i could address your honor's question about the question presented. i would like to make two points with regard to that. first of all, it is woven into the texas court of criminal appeals decision and the judgment that is before the court. the texas court grounded its determination on the prohibition of consulting and using current medical standards on its

presenio framework. the court said that framework governs including the clinical standards at the time but also its view that medical standards generally are exceedingly subjective. that was very important to the court in its determination here. 6a of the appendix. >> i have the same question of the chief justice. it seems 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 reflective of that question, is whether you use the most current or even slightly older medical standards, there's still a conflict. am i right about that, that that's your theory? >> yes, your honor. if i could add one point, the current clinical standards accentuate the conflict, make it even more lear. >> we wouldn't need that, would

we, mr. sloan? we could say the standards are in conflict with the old adkins standards as well as the new ones. there wouldn't need to be a difference between the old ones and the new ones for you to win this case. >> that's correct, your honor. >> but you got in the door by a question presented that is a little more eye catching, which is that they prohibit the current standards and rely on the outdated one. that's all it says. and i'm just wondering if you got yourself in 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. >> two points on that. it is woven into the court of criminal appeals's decision. one cannot look at their judgment on the prohibition of current medical standards without looking at the framework in which they grounded it. >> i'm sorry to interrupt, mr. sloan. can i just make sure i understand that.

because what you're essentially saying is that the court of appeals said that you are barred from using new standards. you must use the breseno standards. so the two were the flip sides of the same coin. what the holding reflected their flaming of the issue. you captain use the same standards. but you were just reflecting their essential holding, which is we have this case and you have to use it. >> that is exactly right. >> why didn't you say that? the question talks about comparison of current and outdated. it's pretty dramatic to say you can't use sttds, you use only the outdated. you don't think they should have used the per seno standards, do you? >> no, is that correct. >> ok. >> first of all, the question presented, we stand by it

because they have prohibited the use of current medical standards and required the use of the 192 standard. >> let me ask you the same question in different terms. you can tell me whether there this is not a fair paraphrase of your question. if you can give me a yes or no answer. i would appreciate it. must the state use current medical standards, for example, dsm v as opposed to dsm iv, yes or no? >> no as put, your honor. the question presented talks about prohibiting. your honor has 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 standard that has to be used everywhere in texas, so

each trial level judge would apply a different standard, whatever that judge thinks is the right one. >> tanned that the court said that the law is that you're prohibited from using the current medical standarding. >> you think that this is a question of trial court discretion, a 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 has prohibited -- the court said that the trial court erred. >> as opposed to the ones that the court of criminal appeals itself adopted? >> from 1992. so it's helpful to consider, if the court of criminal appeals decision stands. ho -- >> 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. >> then -- >> mr. sloan, i don't think you finished answering my question. there are two -- let me phrase it this way. there are different things in the bersano opinion. one is the -- this -- the medical standards that are taken from the medical publications that were skurnt as of the time of that decision. then there are these additional considerations and that's what's regarded as the brisano factors. if you -- disregard did latter. the first part are current -- are medical standards that were current at that time, are they not? >> i respectfully disagree, your honor, in this respect, because what the court said in that case was after talking about following the 1992 standard, it

said we view the medical standards as exceedingly subjective. that's the word that the court used in the cases. that's why we're going to come up with these case factors on our own that are nonclinical, in fact, they're nonclinical because they're based on lay stereotypes. that's what the court said here for its justification. its justification, 6 a to 7 a of the appendix is the court's long-standing view of the subjectivity surrounding the hmm diagnosis of the intellectual disability which stands in contrast to adkins. in adkins the deaf 234igss were -- as hall said, the inquiry has to be informed by the medical community's diagnose schtick frame work and it's know

way it can do that if the -- if there's an exclusion and a prohibition of -- >> there's no doubt about what the texas court said. it's more to the order for texas court. it says the hab yus court judge erred. the case we established is t -- as the test that must be applied by texas courts. is that how you receipted it? >> yes, exactly, your honor. and -- >> it's on page 6 a and e. >> that's right. up think it is helpful to consider how adkins adjudications -- and obviously this is a very important life or

death issue that goes to the human dignity of the disabled. and how it will occur in light of the thing that justice ginsburg just cited. to judges and lawyers testifying in texas, the question is clear and unmistake building. you may not consult or rely on current clinical guidance. to think about that from a clinical expert who's been entrusted with evaluating and making this important evaluation of somebody about whether they're intellectually disabled. that person has gotten the clear instruction and will by the lawyers. you have to go back to the 1992 standard. you can't consider the standards since then. >> mr. sloan, i think it's more than that because it's not just you can't consult the current guidance, you have to go back to the 1992 standards. it says you have to go back to

brisano and there, the findings are not consistent with the old of new standards. >> that's right, your honor. brisineo is saying that only those who are the most severely intellectually disabled are exempt from the death penalty and it's an open question, it says, where those who are more mildly intellectually disabled or mentally retarded at the time. this court had just held that the there's a bright line issue for the disabled. >> i tried to ask myself if the court could use the brisineo factors first and if after that, then turn to the clinical standards, but as justice kagan points out, i think there's a conflict. >> there absolutely is. >> and either or -- >> it's all rooted, both the

conflict with general standards generally and the prohibition of clinical standards -- >> but it is true that adkins left some discretion to the states. what is the rule you propose for how closely state standards must hue to medical practice? >> i think it's the rule that the court announced and explained in hall, which is that the state must be informed by the medical community's diagnostic frame work. what i understand that to the mean is -- and of course as the court said in add kinsz and holland and brum field, the conditions are very, very important. if a state wants to conflict with or disagree with the clinical standard, there has to be a sound reason for doing so. i think in hall, this court identified several considerations. there are four considerations in particular that would go into evaluating whether there's a sound reason for doing so.

the first is is there genuinely a clinical consensus on that point. the second is what do other states do on that point. the third is what does the state do in other intellectual disability context. texas uses these factors only in the death penalty context. as the court explained in hal, the condition as the court said in hall, has an politicability far beyond the demt penalty, and so when a state treats it very differently with much more severe restrictions on finding intellectual disability, only in the death penalty, it is is at the least, a major red flag. >> mr. sloan -- >> justice soto may i don't remember? >> all right. they found two prongs that mr.

moore had not met, that he couldn't prove that he was clinically intellectually disabled, that his i.q. was higher than what was generally recognized clinically. what did they do wrong with respect to that prong and secondly what did the court below do wrong? identify the two ways in which what they're doing and how they're applying the standards we're talking about were in error? >> well, your honor, and as to both, they are in very are sharp conflict with clinical guidance generally and especially with current clinical standards. so beginning with the intellectual deficits in the i.q., the court of april appeals semd as valid an impltd q. test of 74, which as the court explained would take it down to

69, well within the range for intellectual disability. but the court chopped off the lower end of the standard error of measurement. it then treated the 74, the number 74 as decisive and in and of itself that mr. moore could not establish an intellectual deficit or disability, which conflicts with colin calculate standards in the court's decision in hall. the critical condition that the court gives for loping off the lower end are completely clinically unsupportable. the court says that he had a history of poor academic performance. that's not inconsistent. the court says he may have been depressed because he was on death row. well, there's no death row -- there's no rule that if somebody's on death row, you cut off the -- >> there's no medical rule to

that? >> that's right. >> no medical support. >> there's no basis for that. and if court points to a depressive episode 16 years after he took the exam in 1989. >> i thought the more significant part alleged by you in your briefs were that it assumed that things like poverty, poor nutrition, poor performance in school were attributable to his lack of a good home, essentially. why is that clinically wrong? >> because, your honor, in terms of the causation requirement, which is what i think your honor is referring to, hand there are -- there are three major problems with the way the court dealt with causation -- >> i think the court's -- would you say something about the

adaptive behavior? because i think that may be a stronger leg? >> why don't you deal with justice sotomayor's question first and then justice alito's? >> thank you, your honor. in terms of the causation, first the court says at page 10 a. of the appendix, it's well understood as a clinical matter that there is a high incidence in intellectual disability of multiple -- co-mohr bidity. so it's completely at odds with the can clinical understanding. secondly the factors that the court points to are his conditions at home, which not only do not distrablgt. they are well recognized as risk

factors and associated characteristics of intellectual disability. third as the aaidd describes in its brief, from a clinical per 13ek9ive there's no way to make the kind of showing that the court requires here about rather than some other cause. as a clinical matter it's simply impossible to do. the court in hall talked about the risk and threat that add a kins would be turned into a nullity. >> now maybe you can respond to justice alito. >> yes, your honor. in terms of the inactive deficits with your honor -- and it's important to recognize certain points undisputed in the record, for example that at the age of 15, he did not understand the days of the week, the months of the year, the seasons, how to tell time, the principle that subtraction is the opposite of aaddition and numerous other

deficits like that that are undispointed. >> what's the problem with their analysis at that point? >> there are four problems. one of them is that the court focuses on what it perceives as some strengths which it says outweighs the deficits. >> ok. on that one, is there a consensus in the medical community that that's improper? >> yes, your honor. >> and is that -- >> here's an article written by a number of experts, recent article from the journal of american academy of psychiatry and the law, assessing adaptive functioning in death penalty cases after hall and dsm v one of these experts was cited in one of the supporting amicus briefs by organizations in hall that says that any assessment of adaptive functioning must give consideration to assets and deficits adds like. what do you make of that?

are these quacks? >> ah -- >> this is dr. hogan, drogan and gillmet. >> the clinical guidance from both the aaiidd and the american psychiatric association in their clinical guidance, which comes out every ten years that the it focuses on deficits and not on strengths, and for two very, very important reasons. and the first is that -- is the clinical inquiry is about the degree to which smsh is impaired so it's focussing on the impairments. the second is that there is a common stereotype in common misunderstanding that if somebody has strengths that they are not disabled. boldt those emphasize -- >> if the professional organizations by i suppose a majority of vote or something

like that conclude one thing and -- but there are respected spertsds who disagree, you say the state is oshl gated. >> no. >> to follow the -- >> i'm not saying that. i think hall identifies considerations if the case -- if the court is going to disagree. the first one i mentioned is the is there a clinical consensus. >> can i ask whether you might be talking about two different things? i might be wrong, but as aunderstand adaptive functioning there are these burglar areas of functioning that have been set out. what the consensus is is to say if you have deficits in four areas, it doesn't p doesn't matter you don't have a deficit in another area. that's what did consensus is. within each area, people, psychologists can look at -- within an area -- >> sure. >> -- to determine whether you have a deficit. you have to look at what you can and 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's a dispute, for example, about a particular skill. somebody says he cannot drive. there's proof on the other side that yes, the person can drive. so those -- >> i have one question. i don't think you can answer orally. but i think that these cases, you can point me to the answer. that's what i want. 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 they'll be borderline cases. the reason they're borderline is because the testing is right at the border, like an i.q. ters. then you'll put weight on what's called related limitations and adaptive functioning. a matter that on its face sounds as if it's maybe easy in some cases and tough in another. all right? what is the court

supposed-to-do? are we supposed to have all those hearings here? i mean, you've made very good arguments for your client. there are probably several others in the country. inspect different states. which may have different standards, 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 district judge should go about making this determination in borderline cases. >> yes, your honor. >> my suspicion is that there is no such thing but that's why i ask the question. >> let me make two points, which is first of all your honor says what do courts do and i do think it's important that the general principle of this court was clear about in hall which is

being informed by the medical community -- >> up understand that you are saying whatever they should do it shouldn't be -- around here. ok. 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 disparities and uncertainties and different people treated alike and people who are alike treated differently. ok? that's my whole story, and i want you to say no, you're wrong. there is a way to do it. what? >> well, your honor, i think actually the best places to look on this would be the aaidd current manual, the # 1th edition, as well as the pages in the dsm v that address it. it actually points up an important difference in the current standards, because for the first time, the # 1th

edition -- because of this problem because -- about stereotypes that if people have strengths, they can't be considered intellectually disabled. for the first time the 11th condition, the one that the court was off limits here, has an entirely new chapter, chapter 12, about the issues and problems of people who have high i.q. -- who are intellectually disabled but they're at the high i.q. end of the table. the users guide for the first time has a list of harmful stereotypes which includes exactly that. the other thing i have to emphasize is that whatever you think about the application across the country, there's no question that texas is very extreme and stands alone in its view that -- of basically disagreeing with the core premise of add kinsz. repeatedly in its decisions

drawing decisions between those who are severely mentally retard bd and those who are mildly insane but there is no bright line difference. in brasineo the court of criminal appeals says our task is to decide what a consensus of texas citizens thinks the line should be. this court in adkins had just decided for 8th amendment purposes. i reserve the rest of my time. >> thank you, counsel. general keller. >> play it please the court. petitioner conceded that we could have used the dsm iv instead of the dsm v. petitioner says there is no material difference between the law in texas's standards and current clinical frameworks.

so this case has shifted to a discussion of the 7 evidently factors. if i can put those into factors. they're all grounded this court's precedence as pointed out in pages 53 to 55 of our brief. what those go to is the adaptive deficits inquiry. all those questions are asking, can someone nungs in the world and that's what pennsylvania endorsed. >> you describe these as coming from some source but brisino listed the bullet points, did not give a single citation where anyone came from. >> it did. however, this court we go factor by factor and quote this court's precedents and also a peace appendix 162 a, the trial court

adapted petitioners proposed conclusions of law. and that said that analyzingsing the facts under the second prong, even under the current aidd 11th. the an cysts done, the adwaptdive dechs sits prong is going to. this is not a free-floating test that negates the test that texas uses and is part of the national consensus. >> would you agree with this, that the texas court of criminal appeals in bresano and others, has made clear that its view that texas can can choose to execute people who complete consensus, a 100% consensus of clinicians would find to be sbe electric k4u8ly disabled? would you agree with that?

>> i don't think that's what the opinion said. it said it's going to adopt clinical standards. >> i'm asking about brisino and other court of appeals decisions. i thought you said this in your brief, that your view of the point of state discretion is that a person that everybody would find to be intellectually disabled, the state does not have to find because a consensus of texas citizens would not find that person to be disabled. isn't that the prem igs of the court of appeals' decisions? >> no. quite the contrary. let me clearly state about the texas's language. the brisino forms -- the courts twice said it was not going to answer that question. it was not going to do that. the that was for the legislature and instead what the court did is t it adopted, the texas

health safety code definition. >> i don't understand this, and i especially don't understand it from your brief which i'm foog to start to the quote from soon. it seems to me what the texas court did is say, look, we're going to accept the three dimensions, the adaptive deficits and the i.q. and the age, but with respect to the quality and degree of impairment -- i think that that's their language -- we're not going to accept the clinician's view so that people with mild impairment can be executed even though the clinicians would find those people to be sbe electric k4u8ly disabled. >> brisino adopted the test. in cases since then -- >> i reallyize the three-pronged test. the question is the degree of impairment. again, it seems to me pretty clear from your brief when you're talking about adkins didn't establish a national 12d,

that you're saying, too, that the texas -- and if you're not, i mean, i guess i'm surprised by that, that you're saying that the texas courts do needed to follow clinical assessments of intellectual impairment? because that's not what you say on pages 19 through 21 of your brief. >> it's true that this court has recognized there is a legal difference between culpability and diagnosis. brisino adapted the one in the aar -- >> i'm sorry. go back to justice keegan's question. >> he was talking about my question, so go on. >> thank you. >> the current frame work the petition points to says there's an yi78 perfect fit and this court has cited that exact language for that same proposition. it is not the case that states have to categorically wholesale adopt the positions of current medical organizations, but what

brisino did was adpapt aamr 9th. petitioner's brief says there's no material different between the 11th and 9th language. that's why we're not talking about the facial text of the language. we're talking about the brisino factor. >> i'll follow up unless you want to go justice sotomayor. >> maybe i could follow -- >> justice kagan, please. >> no. let me just take one of the brisino factors, right. and it's the fact that the what laypeople think about the person growing up is relative to an assessment of adaptive function. no clinicians would say that. they would say no. that's sort of like stereotypical layperson view, which is different from the clinician view. the factors make clear point one 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 me a very big n different between brisino factors and the clinical view. >> this court b looked at what hall did. in fact there's testimony at the penalty phase retrial about people, lay witnesses that knew petitioner at the time, so it's not that this is irrelevant relevance that is probative. it's not necessarily going to be dispositive. it's going to depend on the record of deficits. >> it says this can trump everything because of the underlying appeals cases that we don't have to look at the clinical standards and we can execute people who clinicians would find to be disabled. >> brisino did not say the

factors can trump the established three prong deaf sigs texas has ah plied. le. >> i'm sorry. you keep saying the threele pronged definition but that definition tells you you have to look to i.q., adaptive functioning, you have to look to youth. it doesn't tell you anything about what qualities you look to and the extent of impairment within those factors and that's where the texas court has insisted upon its freedom to go out on its own. >> even in bring sinno -- >> may i note that you can continue, as a footnote only, that in ex parte, the cca sent back a case directing the lower court to apply the brisino factors, even though that court has analyzed the cases on the clinical standards. it appears to be acting as if those brisino factors are the clinical factors and are controlling, even though there are stereotypes built into them.

>> there are not stereotypes built do them. the standards -- >> well, the dma and all the other clinicians recognize that some mentally disabled people can have some adaptive functioning. idiot sav ants, for example. is it your position that if someone canal calculate math in their head, they can't be clinically 12k5ib8d? >> no. it's -- >> how about if that same person has 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 as -- what texas standard says is it looks to the current frameworks and says you look at conceptive and practical skills. if i can address soa, the trial

court held it was prohibited from look agent the facts of the crime. >> we're not reviewing sosa. can i ask question about what the court did in in case? on pages 62 a and 63-a of the petition, the appendix to the petition, it sets out the tleeg factors and it discusses those at length. then on page 89, in addition our assessment weighs heavily against the finding. so is it clear that these evidentiary factors actually played indispensable role in the decision in this case, which is what we're reviewing? >> no they did not. there are only two pages to bolster a second alternative. the "weighs heavily" language, the court had already concluded in pages of its analysis that

there was sufficient intellectual functioning under the first prong and sufficient adaptive deficits. they said i do not have the deficits to find a diagnosis. that was even before prisoner. that is a sufficient basis to affirm without getting into the brisino factors. >> are you saying that the brisino factors cap churp all individuals with intellectual disability? >> no. the brisino factors -- there could be other circumstances, other facts in the record that would bear on the deficits prong. that's why they said these are discretional air. >> isn't making it discretionary a huge problem in this area? because if you let one trial court judge apply them and another one doesn't have to apply them, then you're opening the door to indefinite results

depending upon who is sitting on the trial court bench, something that we try to prevent from happening in capital cases? >> no, justice ginsburg. it's discretionary, what the cca says in the calf fi case, it said the trial court may ignore some or all of them if they're not helpful. justice kennedy, as far as the universe of people that would or would not be covered by the factors, the cca has used it to grant relief. it affirmed trial court decisions, valdez, plobt, bell and alleged nado -- >> the thing in the petitioners brief, the brisino factors are intended to really limit the classification of those persons with intellectual disability as defined by an almost uniform

medical consensus. >> and the cca has never said that the purpose of these factors is to screen out individuals. >> isn't that the effect? >> no. van alstein granted relief by looking at the brisino factors. >> general, there are going to be cases in which the factors will show disabled but that's not the question. the question is can they be an exhaustive list. >> the brisino factors are not exhaustive and the cca has never treated them like that. >> but the genesis of these factors was that the court said the clinical standards are too subjective and don't reflect what texas citizens think. those are the things. that was the genesis of the standards, which suggests that justice kennedy is right about how they operate and also how they were intended to operate. >> the court did mention

subjectivity. the texas consensus point, though, was not part of the basis to do that. what the cc arvegs was with trying to do here is take if adaptive prong and put that into concrete terms where you could apply it to a record. >> but aren't there -- >> there are two things wrong, possibly, with the factors which we heard. one i can't deal with at this moment in oral argument. you can go through them, they're in the briefs one by one. and say they're not consistent when compared to what the psychologists think. your side says they don't. the other side they do. i can't go further. >> the other yes of why did the texas court write these standards? i have to admit in reading through brisino i came to at least pause when i read the words that they're trying to figure out what to do in borderline cases. what they've done is not -- you know, i understand it.

but they say we have to dig out the level at which a consensus of texas citizens would agree that a person should be exempted from the dent penalty. when i read that and i read there's some other words on page 6 of the report -- of the reported opinion, when i read some other things that they said, i thought were they trying to do this, which we do often in law, but what's the purpose of this? the purpose is to try to figure out whom not to execute because of the way they function. that's the purpose. let's look at what texas citizens would think about this person and try to get standards that reflect that. i really did think that's what they were trying to do in that machine. they're arguing that that's the wrong thing to try to do in this instance. the first, because it would produce nonuniformity in 50 states of the many states that have the death penalty. second, because the question is

not what the citizens of the state think about who should be ask you toed. that has nothing toe 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, yir respective of what texas citizens think. so do you see the basis of my question? i think they are up to -- you saw what i think they're up to. you tell me if i'm right or wrong and why. >> i believe that's mistaken. there are two points after that discussion of the texas consensus where the court says -- page 6, as a court dealing with individual cases, we decline to answer that norm active question about the texas consensus without significant greater assistance through the citizenry. two pages later it's assessing

the difference between legal determination and medical diagnosis. the court says that goes on to adopt the aamr 9th clinical standards. >> going just -- is it your view that what texas is trying to do is to determine who's truly on the clinical borderline as opposed to trying to determine the type of mentally disabled people that it thinks should be executed? >> correct. on the latter -- >> yes. texas has adapted clinical definitions in the aamr 9. >> is it fair to say that in texas, a mildly disabled person is unlikely to be considered disabled by the cca under the brisino factors? >> no. if there was a diagnosis of intellectual disability, even mild intellectual disability,

that -- >> but one of the cases you've cited to me where someone was clinically diagnosed as mildly disabled and the cca said under the brisino factors that they should not be executed. i a-- a lot of the cases you provided us with that it was moderate to severe, moderate to severe disability but was there anyone with mild disability that the brisino factors would find to be sufficiently disabled. >> the van alstein case, i can point to where relief was granted. if i can pull back out -- >> did they find him 3450i8dly disabled? >> the testimony there was on adaptive deficits and whether it was mild or moderate would go to

i.q. scores. if the texas court is erring. texas is not prohibiting the use of current standards. the case quoted and cited -- >> why go to so much trouble saying it wasn't going to use current standards. that it was only going to use older standards. >> because the aada -- it was a second alternative holding. that was the main reason why the cca said trial court, you're not following our precedence. that's error. >> if it has no support anywhere, would that have been a valid reason for discounting the current clinical standards? >> well, that was a second alternative holding here. it's facially valid for texas or any other state to have related in this requirement. that's in the dsm v. it talks about needing something

to be directly related but it doesn't flesh that out. what we're talking about is the application of that. this would be an odd case to decide that. there's not state consensus on this causation point, the coleman case. we are not aware of any case 23467 the relatedness inquiry was the dispositive point on which an adkins claim was denied. >> well, i'm not sure how i can accept your characterization of the cca decision when basically it's saying his poor intellectual functioning on i.q. tests, which happened when he was younger, were not related to his intellectual abilities. they are related to his poverty, his mohr bidity factors. if they're saying that, how are you saying they weren't finding that he wasn't intellectually disabled because of the other factors? >> well it wasn't just --

>> that's how i read the decision. >> it was relying on testimony. the petitioner -- >> wait a minute. the testimony of compton was having looked at all the i.q. tests was i'm not sure, it's probable that he's intellectually disabled by i.q. but he wouldn't qualify in my judgment because of his adaptive skills. but even the state's own expert said that it was probable that he was intellectually disabled. >> they said it would have been border line function. the cca on relatedness -- again this is a second 40e8ding the court doesn't have to reach -- it looked at testimony 2348 petitioner's retrial when petitioner argued that he was not intellectually disabled and the petitioner's own expert agreed -- >> -- that is doing that, back in those days, right? >> well, actually, at the time

henry would have been decided and there would have been a valid basis to say petitioner, i'm intellectually disabled. the strategy which was a reasonable strategy from counsel was to say that petitioner would be able to grow in prison and therefore that was mitigation of e6d that he could be reformed. but the petitioner expert are graeds with the prosecutor the petitioner was "nowhere near" intellectually disabled. that's appendix 269. >> that happened, too, regrettably we squieded that mental disability was a ground to excuse execution, many disabled defendants were represented by counsel who thought that arguing differently was a better strategy. >> of course, penry would have been on the books. regardless even if that's not

controlling, here the cca credited compton's testimony as the most reliable expert who was the only forensic psychologist who personally evaluated the petitioner and compton said i don't have the deficits for the diagnosis. the question presented here is whether texas's well established three pronged test for disability violates the amendment. there are only four states that have wholesale adopted one of the current frameworks. two of them did so saying there's no material difference in the language between the current framework and that test. that's the position the petitioner's taken in the reply brief. >> can you explain what texas applies two different tests to determine whether a school child is intellectually disabled in

both of those categories, what does it have a different standard in capital cases only? >> first of all, the juvenile defender rule that petitioner sites at page 7 of the reply brief, that actually adopts the three prong test that brisino adopted, 3880.8779 c 1. there are other revisions. as the dsm v yiitself said ther was a difference between a 348 dlgs. sings you have the different purposes it is valid for a state to have a different definition of when someone is morally culpable under the eighth amendment versus when someone is -- >> that's dpfl point.

that's the point that we've been making or at least i thought we were. that the whole point of brisino is really to answer the question that you said to say not it really isn't there. it's to help which perfects suffering borderline cases of mental disability ought to be executed. or should not be. because they are less morally culpable. now, i did think that's what they said. that does supply a reason for making differences as justice ginsburg just pointed out. then the question is, is it what purpose of adkins and the other case hall, was, wasn't to give each state the right to decide in board irline cases whom or whom not to execute in light of their feelings about capital n punishme punishment. i thought it had a different purpose which was to appeal to technical definitions of who and

who is not mentally retarded or intellectually disabled. that's a real issue. i think that this case does present that issue. >> what adkins and hall said is there's a critical role for the states. the states have some discretion and every time the dsm v or the aidd 12 comes out, the states don't have to the automatically wholesale it. there's a test. 24 test has existed for 50 years. the states, there's a national consensus adapting that the tets. there's not a national consensus that 2 various factors that brisino factor of an entry test can't be applied. on adaptive strengths in particular, no state prohibits that. 24r50e of the states that use the current frameworks that have adopted wholesale the frameworks still look at strengths. the hackett case in pennsylvania is the best example.

>> the problem is as i read the cca opinion, it's looking at adaptive restrantsz only and not lt deficits. and looking at the depth of the -- or how they form the intellectually disabled component. even dr. compton, the state's expert testified that mr. moore could not from memory recreate a clock. now, she says i don't quite believe that. but she doesn't quite believe that of a person who at 13's father threw him out because he was dumb and illiterate, couldn't tell the days of the week, couldn't tell time, couldn't do anything anyone would consider within an average or even a low average of intellectual functioning, who's eating out of garbage cans repeatedly and getting sick

after each time he did it but not learning from his mistakes. the state's opinion does very little except say those are products of his poor environment, they are not products of his i.d. intellectual disability. >> in addition to be analyzing -- and she said there are limitations, i see, but there have to be significant limitations and she said that wasn't there. she noted petitioner testified four times in the course of the proceedings. he was respondive to question and understood what was going on. he lived on the streets. after the time -- >> the brisino 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 lenny, even though

he could work, earn a living, plan his trying to hide the death of the rabbit he killed, that he could do all of those things and yet he was not just mildly but severely disabled. why is the fact that he could mow lawrenns and play pool indicative of a strength that overcomes all the other deficits. >> that was never part of the test. it's not part of the test. the court said it was not going to address that separate question. >> but it formed its view of how to judge the lack or strength of adammive functions. it used the latest standards. >> no, it absolutely did not. we can see that not only from the fact that what happened in brisino was the lenny paragraph was an aside and the court

adapted the clinical standards. the cca has only one since then cited lenny and it was in a footnote and the cca granted add kijsz relief in that case. that's one of the most misunderstood aspects of the briefing here. >> i'm sort of trying to reconcile the various statements you've made here and in your briefs. this is what i've come up with. tell any if it's right. i think you're saying that the texas court of appeals is complying with adkins because it uses a three prong test but within each of those are prongs, in order to make the distinction between clinical disability and moral culpability within each of those prongs, the court can choose how to apply that prongs and particularly what levels of impairment to use. is that a fair assessment? >> mr. chief justice -- >> sure. >> may i answer?

i don't believe so, because what the court has gone is it has adopted 2 three part test. >> yes, but within each prong, you get to apply it. i thought that was the entire point of hall. no, that's wrong. you don't get to apply it however you want. >> but on intellectual functioning, texas has never had a cutoff as hall says. even on the adaptive prong analysis that's going to define skills as the court has adopted the standards. >> thank you, counsel. three minutes, mr. sloan. >> thank you, your honor. just a few brief points. first there was a lot of discussion about the role of brisino and the relationship to clinical standards in the texas court of criminal appeals decisions, and i would suggest that the court look at the american bar association amicus brief because it goes through three decisions of the court of criminal appeals where in each of those three decisions, the

clinical testimony, the expert testimony was unanimous, that the individual was intellectually disabled and the texas courts used the brisino factors to conclude that he was eligible for execution, nod wang the -- the u nan him inity of thatle testimony. they said -- they conceded that they could have applied the dsm iv and not the dsm v. for the record, i did not say that. if a state is going to reject clinical consensus and in the current clinical standard as in that example, then there would be a number of factors that the court would look at. and one i didn't get to was -- and very important,ing the eighth amendment concerns this court outlined and the requirement to assure someone like this is not going to be

executed. one point about the question presented, in addition to the fact that as we discussed, it's interwe haven with the brisino decision. in the papers themselves we repeatedly used the phrases like "naub clinical." unscientific, standards untethered to clinical consensus. yet the state rested heavily on the bring sin ooe factors. there's a few pages that are specifically directed to that. so that was very extensively discussed in the cersing papers at the time. >> can you clarify what you just said about the dsms? if we were to say today every state must adopt dsm v and then at some point in the future, dsm r6 comes out, would it be your position that those states would

have to go back and reconsider what they were doing? >> they would have to consider them as part of the diagnostic framework. the new editions come out once about every year. but because people use their best clinical and medical training to dwiern and sharpen the teams to identify people -- >> is it true that the brisino factors are consistent with dsm iv? >> no they are not consistent. it is even more clear that they're inconsistent with clinical factors in light of the current clinical standards. my friend also was suggesting that there's some question about -- based on brisino -- may i finish the sentence? >> go ahead. >> -- about whether in fact there is a bright line for the exemption of the disabled. i briefly wanted to call the court's attention to what the court of criminal appeals has

said relying on brisino. one said this court has expressly declined to establish a mental retardation brightline from execution without greater n assistance from the legislature. brisino, and similarly the court said in answering questions about the defendant being clinically retarded is -- >> thank you, counsel. the case is submitted. >> while congress is on break, we're taking the opportunity to show you american history tv programs normally seen only on weekends. we continue tonight with a look at what happened after the end of world war ii. starting at 8:00 eastern with the fate of nazi and japanese war criminals after the wash. that's followed by how the war changed the u.s. and the rest of the world. american history tv, prime-time

all this week at 8:00 p.m. eastern. . >> join us on st. louis for live coverage of the opening day of the new congress. watch the official swearing in of the new and re-elected members of the house and senate and the election of the speak irof the house. our all-day live coverage from capitol hill begins at 7:00 a.m. eastern on c-span or c-span.org or listen to it on the free p span app. >> the heads of honeywell and black stone group took part in the council conference in washington, d.c. this is about a half-hour. >> we wanted to take a look at what the political campaign and public opinion in general did