to leave it to the states to determine the criteria for meeting the standard. this is an hour. >> we will have argument this morning in case 12, paul versus florida. mr. waxman. >> mr. chief justice and may it please the court. in atkins versus virginia this court held that the constitution bars executing persons with mental retardation. that is persons with significantly sub average intellectual function concurrent with deficits in adaptive behavior with an onset before the age of 18.

because of the standard error of measurement that is inherent in the iq test it is universally accepted that worsens with obtained scores of 71 to 75 can and often do have mental retardation when those three prongs are met. the statistical error of measurement or saddam is --. >> a line has to be drawn somewhere. and we did say in atkins that we would leave it up to the states to determine the standards for this issue. so what is the rule being announced today? are we saying that 70 is not okay and that 75 wood the? how would you announce the rule? >> well let me first take some issue with all due respect with your characterization of atkins. what this court said in atkins is not that we leave it to the states to establish the

standards for the clinical condition of mental retardation. what you said quoting ford is we leave it to the states -- we leave to the states the task of developing appropriate ways to enforce the constitutional restrictions that we announced. the rule that we advocate and the only real question presented in this case is just this. if the state conditions the opportunity to demonstrate mental retardation on obtained iq test scores they cannot ignore the measurement error that is inherent in those scores that is a statistical feature of the test instrument itself. >> we didn't base our decision in atkins upon the study of what the american psychiatric association and other medical

associations considered to be mental retardation. we based it on what was the general rule that states have adopted and the large number of states had adopted 70 is the criterion. the criterion is whether the american people think is the level of mental retardation that should make it impossible to impose the death penalty. we didn't look for the answer to that question to the apa or any of the other medical associations. we look to what the states did. what has changed and let the states do? anything? >> justice scalia i would like to respond with four points and i hope desperately i will remember them. first of all what this court said was, this court number one it made clear as it is reiterated in miller versus alabama and reimburses florida

that while the consensus or a perceived consensus among the states is important the ultimate test as this court's conclusion about what the eighth amendment does or doesn't allow. in making that determination on page 318 of this court's opinion in atkins this court after reciting footnote 3 the virtual identical clinical definitions of mental retardation and in footnote 5 pointing out that 70 to 75 is the establish cutoff for mental retardation, this court said the following. quote clinical definitions of mental retardation require and it recited the three tests. because of their impairments, mentally retarded persons by definition, that is by the clinical definition, have diminished capacities to understand and they recited all the disabilities that made the

imposition of the death penalty for persons with that clinical condition unconstitutional. as to what the states did, the court did refer to i believe 18 state statutes. not a single one of the state statutes and not a single decision of the highest court of any state or any court in any state applied 70 or two standard deviations from the mean without reference to the sem. the only statute that addressed it in 2002 when this court decided atkins was arizona which expressly provided that the sem must be taken into account in evaluating and obtained iq test. >> does establish by whom? >> the standard error of measurement which is established by the creators of the tests. it is not something that

clinicians dream up. it's not something that is decided by the a.i.d. d. or the american psychiatric association. it is inherent in the test and all clinicians are told both professional associations made clear because it is simply a statistical fact it must be taken into account such that and obtained iq test score is actually the result of an obtained iq test score is a test band. >> for what purpose did they establish these? is it for the purpose of determinidetermini ng who is so incapable of controlling his actions that he shouldn't be subject to the death penalty? is that what they're looking for when they establish 70 to 75? what are they looking for? >> intelligence tests supply, i mean they weren't created for the definition, the clinical

definition of mental retardation. the rear created to determine a proxy for true intellectual function and therefore a true iq test score. the general. >> i'm not talking about iq tests in general. i'm talking about why did they pick -- they use to pick and now they pick between 70 and 75 is the upper limit. the upper limit for what? i assume it's for people who would profit from medical treatment isn't that it's? >> there are many reasons why a person's iq, that is a persons intellectual functioning may be important for a hold for i.d. of reasons mental psychological developmental developmental and as an opponent of the clinical clinical -- the eighth amendment. >> mr. waxman would you just clarify one thing?

what you refer to as the sem is not limited to an iq of 70 to 75. that's across-the-board. >> the statistical concept of the standard error of measurement applies to all forms of testing. >> it has nothing to do with the death penalty and mental retardation. >> no, i'm am sure that when archimedes based his experimental observations he also recognized essentially the schematics. >> may i come back to something similar that justice sotomayor came up with. in your view does the constitution permit the state to establish any hard cut off, let's say 76? you can't do that. >> i think he can because the standard definition that is intellectual functioning is two or more standard deviations

below the mean. i'm sorry let me just explain. if they state is using -- if the state is using an obtained iq test score as a proxy for true intellectual function that has to take into account the standard error of measurement and therefore states like mississippi and oklahoma that in fact establish a cut-off of 75 in our view is constitutional as this court announced the class of individuals. >> so that is just saying -- when you say the standard air you are talking about a degree of confidence, right? >> correct. >> your submission is that you need to have a 95% degree? the that's what the fight is to? >> on a test that is norm 70 as

two standard deviations below the mean. if there is a standard error of measurement, this is not my submission. this is universal. >> one just trying to figure out what it means. >> what the it means is that someone for example with an obtained iq test score of 71 as mr. paul received has a 95% probability that his score will be between 76 and. >> so why 95% wax where does that come from? why are you pick in 95%? why isn't at 90%? >> i am not doing any picking. >> what the organizations picked 95%? >> it's been two standard error or two sem's which is 95% for decades and decades. universal consensus in footnote 5. see which party has the burden

of persuasion on the issue of iq and what is the standard? >> it varies from state to state. >> i mean what is the eighth amendment require? does the eighth amendment permits the state to assign to a defendant the burden of persuasion on iq? iq above 75 and they assign that durden above 70 and they assign that to the defendant and if they can what is the standard of proof that the defendant has to meet? >> the short answer is the agreement i will come to is yes so you can see where i'm going but we believe it's entirely constitutional for the state to assign the burden of proving mental retardation on the defendant and insofar as the clinical definition recognized by this court in atkins is a three-part conjunctive test. i think it's fair to say that a logical consequence of that is

as to every component the burden may constitutionally be placed on the defendant. the burden with respect to prong one is the burden of proving significantly sup average intellectual functioning of which a true iq score is a probabilistic piece of evidence. >> why can't the state -- you told me the state can establish a hard cut off and you told me that a state can assign the burden to the defendant. now in the case of someone who scores 75 is it not the case that there is no more than a 2.5% chance of that person's real iq is 70? how does that square with any burden of proof or any standard of proof that might be assigned on that point? that's what i don't understand about your argument.

>> what the me see if i can explain this. first of all this is a man who has a 71. >> i understand i'm talking about the general issue. >> yes to the general issue but we say it this way. the whole idea behind measurement error is that you can't make a valid judgment that somebody doesn't have a true score of 70 or below if the obtained score is within the measurement error and even more fundamental than that your question suggests and the states suggestion suggests that diagnosing mental retardation which is the constitutional inquiry is just a probabilistic inquiry into a persons quote true iq score but true iq scores themselves are a statistical concept. it's a score that you would get on a hypothetical test that had no measurement error and this is

my point. through iq is not the same as intellectual functioning. an iq test, however perfect they may be don't perfectly captured persons intellectual function. >> understand the argument but that doesn't seem to be consistent with your point that the state can establish a hard cut off of 76. you get 76th get 76th on an iq test and that's the end of the inquiry. a person does not qualify under atkins. >> this would not be a standard i would endorse but i believe that in light of the consensus test that all professional organizations apply that was recognized in atkins, a score that is above the standard error of measurement of two standard deviations above the mean would be okay but the converse point it seems to me is not true which

as we know for a fact that many many people who obtain test scores of 71 to 75 in fact have mental retardation and if i may just point out that in this case there were six experts who fully examined mr. hall were supervised the full examination of mr. hall. they were cognizant of the iq test scores that he had received and each one of them opined without hesitation that he had mental retardation, functional mental retardation. >> the district court did make the finding that he did not show adaptive behavior. the district court said that was so and all of those experts that you refer to were speaking

retrospectively with little evidence of what the defendants condition was. that is what is in the joint appendix. >> that is correct justice ginsburg. now the state crile -- trial court ruled that it would not accept evidence as to prong's two and three but it did allow mr. hall's lawyers to make a proffer pursuant to the states agreement that there could be a proffer in some expeditious manner and that is joint appendix 158. one of the two grounds that we appealed to the florida supreme court on in addition to the hard cut off at 70 was the fact that in fact an expeditious proffer did not in fact permit us to put on all of our evidence about prongs two and three and the

florida supreme court and this is page 125 of the joint appendix said we don't even consider that question because we uphold the rule in cherry. >> that limited view to the retrospective ,-com,-com ma the trial judge asked a simple question. how did the defendant adapt in prison? one expert as saying i didn't test for that. i don't know why i didn't do it in the same expert said he had in fact done it in other cases. >> you are correct. part of the expeditious proffer, the expeditious proffer was limited to the testimony of a belief actually only one of the experts who examined them into the adaptive testing function and that expert did say that he didn't test in prison.

here is again a universal professional consensus that adaptive functioning is tested by a adaptive functioning the real world, not adaptive functioning that occurs after 35 years on death row. and in fact we also know to a clinical certainty that because mental retardation is a condition that is both developmental and nods transient, that is there has to be a demonstrated onset during the developmental period but one doesn't emerge from the condition of mental retardation on for example mental illness. >> you talk about the condition of the mental disability that is involved here. i want to go back to something he said in response to justice scalia. the question was on the line of what does it mean to have a

disorder under the dsm? obviously one thing it means is that the scholars can talk about it and they can all focus on the same subject. does it have any meaning other than that other than it is an objective index and an objective characterization that certain people have, certain mental conditions? is that what it means? >> that's exactly what it means justice kennedy. what it means is as this court recognized it is a clinical condition of unlike her example insanity or incompetence. >> is there any evidence that society in general give substantial deference to the psychiatric profession in this respect? are there any studies on that or anything we can look to to see if that is true or not true? >> i'm actually not aware of anything that suggests that society doesn't look to

professional evaluations to do this and in fact if one looks only at florida's system, florida uses mental retardation as a determinant for things other than the death penalty. the existence of the condition for educational remediation, vocational rehabilitation and in those instances as we point out in our brief, florida does apply to standard error of measurement >> we have later in the week an argument about economic theories and it's a little different because in that case it's the courts own jurisprudence and we have not said as we have in atkins that it's up to the state do you think we differ this idea to psychologists and psychiatrists? >> i think it has to be much much more because as this court has pointed out this is a

clinical condition. it's a condition that can only be appropriately diagnosed by professionals. >> this apa is the same organization that once said homosexuality was a mental disability and now they say it's perfectly normal. they change their minds as to whether 70 or 75 is the new tests for mental retardation. >> the latter is not true. the standard -- two things that are not in dispute in this case. we are only here talking about prong one which is significantly sub average intellectual functioning and nothing else and everyone agrees, all the states agree, they all agreed at the time atkins was decided that the clinical condition is defined by three elements and the first

element sub average intellectual function is defined as a person whose intellectual function is to two or more standard deviations below the mean intellectual functioning of contemporary society. >> mr. waxman can i take you back to a question that the chief justice asked because the chief justice says where does the sem come from and it is the test makers determination that this is the margin of error big issue in 95% confidence. i guess the question here or one question here is why do we have a 95%, why do we need a 95% confidence level and you could see it either way. you could say gosh we are putting somebody to death. we should have 100% confidence level or you could say as i take it just as alito's point was well look the burden of proof is on the defendant here.

so what 95% confidence level seems awfully high. we should ratchet it down to 80% so why this purpose do we have to go with a test makers determination that five is what get you a 95% confidence level? >> so the fact that two sem's issue 95% confidence level is a statistical fact. i take your question to be wide our professional associations using that? >> that is not really my question. they might use it for a wide variety of purposes. the question is why is their determination that it's useful for a wide variety of purposes to have 95% confidence level why is the states that with that for this purpose? >> because this goes to the reason that they use it. the reason that they use it is because of the inherent in rescission and testing in

general but in particular testif something like relative intellectual functioning. there are so many -- it is so common for people for a righty of reasons obtain a 71 or 72 in fact to have mental retardation and because evidence of intellectual, and a valuation of intellectual function involves clinically much more than a test score and look what happened in this case. all of the iq test that word ministered and all of the wexler tests fail within the standard error of measurement. they were accompanied by the administration of further intelligence testing testing for confirmatory. >> is that what you won't? i go back to justice sotomayor's question. you start mucking around with 95%. it's all over the law. 95% is a classical measure by scientists of when they have

confidence and in fact regression analysis seems to establish the fact is a fact here that is in tort law or whether jury trials are discriminating because they don't have black people on the jury. it's all over the loss so i assume you are not asking us to muck around with that number because i don't know what the consequences would be. you get the same test six times and now we have reduced it from 5%. if he's above 70 all the time it could be 1/100th of 1%. is that what you want to have happen? >> as to your latter point. >> and my right and what i said? >> you are not right in some of the things he said. the last thing you said is not right. >> before the last thing. see the last thing is important. >> i didn't say was an important but my thinking is my dependent on being right --.

>> your right that 95% is generally a feature widely adopted as a confidence level and it's particularly important here because the constitutional guarantee announced in atkins is against the execution of persons with mental retardation. >> one justice breyer's last point before your time expires executive think this is important. what about possible tests? what if someone is given 25 wexler tests and 24 times the person scores 76 and 11 time the person scores 72. how would you deal with that in a state that has a hard cut off? >> this is the last point that i wanted to get to and i think the best thing, before my time runs out i want to point you to page 10 footnote 3 of our reply brief which cites the oxford handbook of medical diagnosis or something and we have given you the pages. on those pages that explains why when you have a situation of

somebody who takes more than one test the appropriate determinant is very much not the average. it is what is called the composite score in the compost at score is different and in fact for people below the mean, below the average because you have to take into account the fact that regression towards the mean and also the fact that a person who takes two, three or four tests, multiple tests changes the bell curve on standard deviations of the example that is given in the oxford handbook is simple -- similar to this case. there were four tests in a average is 72. the composite score and there is a statistical explanation for how it is arrived at at the standard error of measurement is actually larger using a composite score so that is why as to justice breyer's last point simply averaging obtain

scores does not in fact give you a better handle because they were so few people who score significantly below the mean on multiple tests. what clinicians use is a statistical analysis that takes into account the different calculation of what they standard aviation below the mean is. >> that is not consistent with my understanding and i don't claim to have a deep understanding of the. the answer to my hypothetical where there are multiple scores and i will ask the state the opposite question. what would you do there? >> we know what florida does. >> what the's or require in your view? >> in our view the eighth amendment requires that if a state chooses to use iq test scores as a proxy for intellectual functioning rather than a full inquiry of intellectual functioning it

cannot refuse to employ the standard errors of measurement that is inherent in the test. >> you would not need to go on to adaptive behavior. >> our view is that the state consistent with atkins could say that if you have no obtain score on a valid properly ministered up to date test that is below 76 you may constitutionally be precluded. many clinicians would go ahead and do adaptive functioning and other intellectual testing but our view is that states like mississippi and oklahoma that said 76 as the cutoff you would comply with atkins. may atkins. may i save the balance of my time? >> thank you counsel.

>> general winsor. >> mr. chief justice and may it please the court. this court should affirm the decision of the florida supreme court because it represents the legislative judgment fully consistent with atkins. i would like to start by responding to your question justice alito about what you do if multiple scores and in fact in this case we are not talking about someone who had one or two iq scores. when you look at the weschler test which is the petitioner claims is the gold standard via test scores of 71, 72, 73, 74 and 80 and as we understand what the petitioner would have this court do is to take some of those lower scores and subtract five points from them. that is not consistent with the materials you cited in the footnote and if we look at the example here they do apply statistical principles to arrange of supporters that they did not simply simply take the lore schooled and subtract five points. the logic i would submit is

fairly obvious. he you couldn't have a situation where taking this case where you have a low iq on the weschler of 71 and a high iq on the weschler of 80 and at the same time there's a 95% chance his scores between 75 and 85 and also a 95 95 -- >> one justice decide this case and establish the principle, the very significant principle where you have a criminal defendant indicted for murder whose scores are 71, 72, 73, 74 and 80. that is all you are trying to persuade us on? >> your honor i'm not happy having to go through this and all future cases where you have somebody who has 69, 73, 74, 75 and 81. don't you have some more general principle other than the particular scores?

>> we certainly think the particular scores in this case are good enough but we have a broader principle which is that when you're dealing with things like mental diagnosis or things in the medical field generally there's good reason for this court to do as it has historic day which is to defer to reasonable legislative judgments >> let me ask you this. suppose the american psychiatric association and oliver are fictional associations do use the sem. it seems to me what the state is saying here in declining to use that is that it declines to follow the standards that are set by the people that designed and administered and interpreted the tests. >> i have two responses to that. if the constitutional -- and it's not that there were constitutional rule that the eighth amendment adopted all

kinds of clinical criteria that the apa. >> this is not clinical. this is statistical. you keep saying clinical but the sem is not a clinical -- clinical judgment. so standard error of judgment. >> that's right but justice kennedy's question was how can florida deviate from what the dsm or the ai dd suggests her best practices. >> this has nothing to do with best practices. it has to do with what the test givers say is the right way to look at their tests. >> the test measures published in the error measure but it's the dsm and the ai dd that are suggesting how many deviations you should use. >> no they are not challenging the two standard deviations. they are saying if you want to prove functioning abilities in the other two factors of your

test based on the score of a test that says it has a sem f5 then you have to use the sem. it's very different. they're not saying you have to take that number and declare that person mentally intellectually challenged. you just have to apply the other factors. >> is a three-pronged test soon and need since you would have to demonstrate the assistance of all three prongs but with respect to the 95% interval --. >> i thought that you'd don't have to go to in your view you don't have to go to the second and third standards if on the first it's 70 or below. i thought a adaptive behavior doesn't come into the picture and onset doesn't come into the picture if the iq is above 70.

>> that's correct your honor. it's a three-part test in the medical community doesn't dispute that in the petition doesn't dispute that. to achieve a diagnosis of mental retardation you'd have to demonstrate that you meet each of the three. >> there may be agreement among you on this but with atkins says in three parts as you say. one part is significantly sup average intellectual functioning that's the first one. so what you say is if it's above the 70 on an iq test that's the end of that it and you don't go further. what they say is i want to tell the jury something or the judge of the judges deciding. judge i have an expert here. thank you. expert i want to tell you your honor that number 70 that is subject to air.

it could be and indeed the state can do the same thing. if it's 68 the number 68 is subject to error. if somebody measures 68 you could bring in the witness andy would say 5% of the time it's within five points either way. i think that's all they want to do and there could be other ways of going about it. maybe you did the same test six times and that may not eliminate but if i reduce the possibility of error or there may be other way of doing it. you call a psychiatrist and he says okay or an expert. 72 still we have other ways. we have other ways not just tests. i think you would do the same thing if you wanted to on the downside. that might lead people to being executed you see and that is their position i think. you may get to do it on the upside. what's wrong with that? it doesn't sound so so terrible

and anyway the eighth amendment, this is a way of enforcing the eighth amendment. this doesn't need to be an independent eighth amendment devaluation. >> what is wrong with that is substantially if you raise the limit to 75 as mr. waxman suggested you could. >> doesn't raise the limit to 75. what it does is it says that i don't want to repeat what is at 70 they call their expert who informs the decision-maker just what i said and i would take a little time, maybe 15 minutes, maybe a little longer. that is what they want to do i think. and what's so terrible about doing that? >> was so terrible about doing it is you would end up increasing the number of people who would be eligible for mental retardation. >> only those who in fact are mentally retarded. >> they are not mentally

retarded. there's no to scream it at the appropriate threshold. it's a matter of what does it take to prove by clear and convincing evidence which is a standard of proof that they have as a matter florida law and the standard of proof that is unchallenged in this case. all florida recognizes is the best measure of your true identity is your eye obtain iq test score. >> is the determination here is whether someone is mentally retarded and the iq test is just a part of that. it's a part of one prong of that determination and what you're cut off does is it essentially says the inquiry has to stop there. the question is how is that at all consistent with anything we ever say when it comes to the death penalty because when we have this whole line of business that says when it comes to meeting out the death penalty we actually do individualized consideration and we allow people to make their best case about why they are not eligible

for the death penalty. essentially what you're cut off does is it stops that in its tracks as to a person who may or may not even have a true iq of over 70 and battled bone what stops people in their tracks who may not, who may be mentally retarded. >> with respect to the mitigation this action in florida's completely separate so he does have individualized decision-making with respect to whether to have a death sentence in the still has an opportunity opportunity -- >> with respect to this critical question we said you cannot execute somebody who is mentally retarded and he says now you are preventing me from showing me that you are mentally retarded. you have an iq test a part of one prong of a three-pronged test. you have an iq test that says

i'm not mentally retarded but that iq tests may be wrong. it's not given that you are not using the margin of error. >> with respect to the iq testig that's a recent development and one of the problems we have with the idea of constitutionalizing medical criteria is that it is changing. if you look at dsm-iv in existence at the time of atkins the dsm-5 replaced it last year they said intellectual functioning the prong was defined. >> mr. winsor we don't allow all factors to be considered, do we? with the state have been able to refute his assertion of mental retardation by pointing to the fact that he's the one who sees the young woman, who pushed her into a car, who drove the car with his accomplice following in another car and who killed her

and killed a policeman too later. could the state bring that it and say somebody who is mentally retarded enough, so mentally retarded as to not be responsible and not be subject to the death penalty certainly could not pull this off. this is not a person who is that mentally retarded. could the state show that? >> the state has a -- on the adaptive functioning portion of the test. there's a three-pronged test the intellectual which has historically been about iq until recently in adaptive functioning talks about how people react in the ordinary world to difficult situations and some of what you talked about mayor and may not be relevant but further responding to the earlier question it's not that florida is not allowing evidence that florida florida's meek in a finding that you cannot satisfy satisfy -- >> seems to me to follow

mrs. kagan's question and i think it's a very important question we have been talking here about the inaccuracy to some extent of iq scores and your rule prevents us from getting a better understanding of whether that iq score is accurate or not because we cannot even reach the adaptive functioning prong. you prevented at the outset and you don't prevented if it's under 65 for under 70. >> you would have to satisfy it all that with respect to your question about whether adaptive functioning evidence can affect the reading of the iq we submit that is not the case. that is why the discreet inquiries so if you have multiple test scores.

>> doesn't eliminate whether or not the iq test is exactly as reported or if it is subject to some decrease or increase depending on what the evidence of adaptive functioning shows? >> no your honor. that would be modern dsm but again it used to define the intellectual functioning prong is being determined exclusively exclusively -- >> i will read atkins again and atkins did refer to the adaptive functionality. >> make no mistake there is in adaptive functioning inquiry. that is one of the three prongs they have to prove intellectual and adaptive functioning. >> but that was under dsm-iv? >> that has been a part for decades. what is changing is the way the medical community looks at how to measure iq or what to do with iq. >> at the very least you give someone an iq iq test and he scores a 71. now he might actually have an iq

of 71 or we know from the way the standard margins of error work he might have an iq of 61 and he won't let him go to the adaptive behavior prong of the test and show that you know and show that he can't function in society in the ways that atkins seems to care about as justice kennedy says. notwithstanding that this iq score number might be accurate or might not be. >> the adaptive functioning is a component that the guideline for dsm would agree that no matter what your deficits are in adaptive functioning you do not qualify for mental retardation diagnosis without also showing substantial deficits in intellectual auctioning. >> i know there is less emphasis now on the iq test then there was before but when the iq test was used, did they always use it as a fixed number or did they always include the sem in

informing the clinical judgment? >> the sem has been part of the question. i'm not disputing that. >> that has been the same in all clinical diagnoses? >> i think they application a dsm has been component of this for sometime. we don't dispute that. we do note the emphasis of iq is decreasing and are suggesting that you should rely less and less on iq. >> they are not arguing for that. they are just arguing that we should stay where it has always been a which is within the dsm? >> you should apply the dsm as a way clinicians do because that's the way the clinicians do and if you go down that road is difficult to understand the principle on where that would stop. >> does the state that doesn't use an iq test always require a 95% confidence level and always

require 95% confidence level? let's say a school wants to identify gifted children and they say the child is gifted if the child has an iq of 130 or above so they say if you haven't obtained score of 130 you are in you are in the gifted child program even though there's the same percentage that would be the case with respect to someone with an iq of 70 or a person is below 130. would there be something wrong with them doing that? are there places that do that? >> certainly an asset to the decision-maker who is relying on the tests for whatever the purpose of it is. the decision-maker relying on an iq test score and take your example about someone at school they can set that is high or low as they want to because they might want to be particularly restrictive and that is one of the areas where what we are dealing with here in the atkins context is fundamentally

different because we have an adversarial process at least with respect to contest it -- we have a burden of proof clear and convincing evidence burden of proof that is not shared in clinical settings. there are a lot of reasons why it's very different to make a diagnosis in a clinical setting particularly where the emphasis is on providing services or making services available to people and we don't have the same incentive to be overinclusive. >> general could the state changes statute to say we are now using a threshold of 60? >> the state certainly -- i think the answer to that is yes although it would be more difficult to defend because we want to do is go back and look at the consensus that was a part of fact, the consensus that supported the decision in atkins but before making a decision on 60 as a threshold or some other number you would want to look at the whole thing. >> i don't understand it. you will have to explain it to

me because i thought 70 was very long-standing. everybody is agreed that it's 70 for many decades, maybe forever so how could the state -- why could the states say no to that? what would you look at? >> i think you would look again at the special interests issue in atkins and those that with the state may need to be more restrictive because of the incentives that inmates would have to score lower than they would ordinarily perform at that you wouldn't have any clinical setting or necessarily a school setting. >> that is where you -- that is why you have the other two prongs. >> you certainly --. >> when you have a fixed cutoff you have the ability to defeat the other two prongs that you are stopping them based on a test score that holds the margin of air and recognize the

designers of the test. >> we are not stopping them. all we are stopping is the consideration of the other prong but it's clear that the first prong can't be satisfied so in the breathing their society that it necessarily has to be -- you wouldn't necessarily have any iq. >> did i misunderstand the case? i thought the florida court held in effect in my words that the iq was a threshold in order to make this inquiry and you had over 70 you could not make the showing. please correct me if i'm wrong. >> that is correct to what happened in this state and the state recognize that the iq scores that were an issue worth all of the 70s so it it's sort of an ordinary evidentiary motion where you have a different case we have to prove

causation and damages. >> if you did not satisfied prong one you do not get two prongs two or three. >> by the taint -- same token if you don't satisfy to to you all get to prong threes of the evidentiary ruling is simply a recognition that you have to satisfy all three prongs which again. >> what happens if right now under the law of florida assuming this case and there is an iq score of 71 and the prosecutor points out to the judge and the defense lawyer says your honor i would like to bring in my test expert here who will explain to you even though this test did shows 71 there is some very small but some probability of error and it could the as high as 76 and he would like to explain to you that is the situation and therefore can i have you testified?

does the judge have to let him testify or not? >> if i understand the correctly if you have one score of 71 and without obtaining a test score of 70 or below. >> so this is the case. if you would to present that expert they would say no. back to my first question which i won't repeat and this man has been on death row for over set set -- 35 years. >> 1978 was the act. >> mental retardation and tell 10 years after his first conviction. >> he raised it in the hitchcock sitting in the late 80s and had some of the same evidence. >> it's gone on this long. 1978 is when he killed this woman. >> there've been a number of appeals and in this case a number of issues raised but yes. >> general, the last 10 people florida has executed spend an

average of 24.9 years on death row. do you think that is consistent with the purposes of the death penalty and is consistent with sound administration of the justice system? >> i certainly think it's consistent with the constitution and i think they're obvious. >> that wasn't my question. is the consistent with the purposes of the death talty it's designed to serve and is a consistent with orderly administration of justice? >> is consistent. >> go ahead. >> it's consistent with the purposes of the death penalty. >> mr. winsor most of the delay has been because of rules. >> of course most of the delay and in this case it was five years before there was a hearing on the question.

did the attorney general of florida suggested to the legislature and the measures or provisions or any statutes to expedite the consideration? >> your honor there was a statute last spring called the timely justice act that authorizes the number of issues they raise events presently being challenged by the florida supreme court. but i would like to talk about about. >> me i'd suggest why you have this policy? isn't an administrative convenience? tell me way of the policy. >> the people of florida have decided it's an appropriate punishment for the most horrific crimes. >> no, no, no why you have the 70 threshold. that is what i was getting at. florida has an interest in ensuring that the people that executions because of mental retardation are that mentally retarded and if we apply the rule that the petitioner has suggested it would double the number of people who are eligible for the exemption and

that is inconsistent with florida's purposes of the death penalty. >> that is just to say that would double the number of people eligible for some of them may be mentally retarded. presumably we want accurate decision-making with respect to this. >> they are not mentally retarded if they don't have an iq score of 70 or below. >> they are not mentally retarded if they don't have an iq of 70 or below? >> don't believe that yourself. this is a tool to decide whether someone is mentally retarded and it's a tool that functions in one prong of the three-pronged test. >> it is the first prong. the iq test is the first prong so no matter what the adaptive principles principles or you must demonstrate and again in his adversary setting you must present clear and convincing evidence that you have an iq of 70 or below and what we believe if you say there's a 95% chance

my iq is somewhere between 60 and 70 that you have not satisfied that first prong. i'd like to talk about the 95% confidence level because it is not the case that you have a 95% chance that your iq is 70 or below and in fact it's a small chance. with the confidence interval measures you have a 95% chance that your true iq is within five .7 if the measured iq platts you would have an equal chance of having 66, 67 or 68 so if you take a test over and over again you will score near the peak of the bell curve most of the time which is where your chirla iq would he and the outer 5% threshold is a small likelihood that is your true iq and with each additional taste you take the odds would go down. so it's simply not the case that you can say well he has a 72 so he is satisfied very good microsatisfy the first part because it's a statistical matter.

as a factual matter every weschler testing is taken and submitted into evidence with over 70. yet as 71, 72, 74, and an 80. he would have to look and say what are the odds that it was that testing that was under 70? is it possible? certainly is possible. you can exceed beyond the 95% confidence level and nobody disputes that the true iq is something that is incapable of being measured. the iq test is what the community has. it's the most objective of the three prongs which is why we believe it's particularly take important to focus on because it's the most objective testing we have. >> how many states retain that practice with a rigid 70? >> your honor there are eight states that have a hard cutoff

and a 70 or two standard deviation which approximates the same thing that have been recognized by the states. they're a number of other states that have statutes similar to florida's but they have not been interpreted one way or the other. >> of those how many have a sem? i thought it was for. >> those eight year honor have fixed cutoffs of 70 or two standard deviations. >> that's something that. >> in most of the us is as they what florida has done which is they have a statute determined by the courts. >> that is what i'm saying. only four have been determined without sem. >> i apologize. >> i thought only for were interpreted without using the sem?

>> no year honor we have alabama florida idaho kansas kentucky north carolina and virginia and maryland which is repeal the death penalty but -- we would ask respectfully that the court affirmed the florida supreme court. >> thank you journal. mr. waxman you have one minute remaining. >> in-state versus cherry which is the florida supreme court decision that established this rule that if your lowest score or your only score is 71 that applies when you take one test for multiple tests. here i'm quoting from the supreme court's decision in cherry that quote it is a universally accepted given that the sem is a universally accepted given and as such should logically be considered in determining whether a defendant has mental retardation and what the court said was we have to read the plain meaning of the florida statute in the florida statute says two

standard deviations. ..