they pushed the court i'm jeff rosensweig from little rock and i represent albon jackson and actually have done so for the past twenty years there are several things that are not in dispute one is that album jackson has a bad  brain another thing that's not in dispute is that that that fact has been evident since his early childhood there is no dispute that he is either intellectually disabled or mentally retarded whatever term you want to use or very close to it he was found to have been mildly mentally retarded as a child our expert dr money and he says he's clearly retarded the results obtained by doctor make bog the state's expert says he's retarded as well the offense that was the court went on for pages and pages about how the the the coke laser homicide and then the grime before then and of course that as was conceded there's a huge problem in attempting to determine adaptive behavior while one is in prison particularly when one is in the in the very close confines of death row another another i thought that was a kind of an interesting facet of this case is how you determine somebody's what someone's adaptive o abilities are when they're in such a regimented environment which accent college just conceded this is a big problem they seem to use as i don't see a proxy for that but his ability to understand concepts this idea of what was a term where you send a letter out with the wrong return mail address so that's how you get mailed other prisoners there's a name for them again now  mean i'm not sure i understand the point you were making a few minutes ago that the east you think judge wright improperly used evidence about the facts of the  this of this crime and other crimes to influence her decision on the intellectual ability yes or how do you why do you say that what part of the of her opinion would we look to to see where she where she did that and the reason i asked the question when i look at her findings on page forty three it seems to be couched in terms of  in that part of the opinion well well it did affect it did affect certainly the adaptive behavior and i think he has me i'm sure my my position is that it did is that the courts mistakes  requiring something that for instance was not authorized by ten art would have affected the court's analysis of of the intellectual disability yes of course i understand boss says no i don't think they're correct because i think he's from a lingering but he conceded that we've got the problem with the judging the lingering and we do know and everyone agrees that he has a bad brain we've got all sorts of to the medical the medical the psychological the psychiatric and not the lay opinion as to something or he doesn't he doesn't sound retarded or he doesn't he acted in such a way that that a retard you know the layperson a retarded person wouldn't do that and i believe that the the district court's opinion fell in true to some extent the sort of trap that cross examination that there was no at the time no requirement of a linkage between prong one and two but between the time we heard the case and the time  why isn't it the appropriate thing to do to under current supreme court president to use the most recent medical and psychological manual for the legal well that's what the court recommends that the that the decision makers at you is to use the most recent as opposed to what may have been around at the time of the crime or some earlier period it would be had we had failed to provide show a linkage between probably one prong to when in fact that was not required it was simply not required at the time and judge s m five purported to resolve the controversy you know report to resolve the controversy in a way that would hurt us and it clearly did hurt us because it caused was part of the judge wright's ruling against us  require that i mean you're required to you're going to need to determine the contacts i mean i think the experts would have to be the ones that have to be the ones to answer that although this wouldn't be under obviously it's not going to be writing under a blank slate i mean there's no question about that it's not going to be a blank slate but it may involve having both doc both expert mr jackson again they would be examining under a blank slate and asked what is your what is your opinion and then the judge judge wright can make her decision but it is again it is our good morning may it please the court i am pamela ramps and i represent the apple e wendy kelley i'm going to start where we ended off and that is regarding the linkage requirement in the five and which the district court specifically used in its opinion denying mister jackson relief in this case to begin with the district court did not make a finding that mr jackson was or was not mentally retarded the district court's opinion was that mr jackson had not proven that he was mentally retarded and as this court is aware it is mr jackson's burden by a preponderance of the abbot and to establish the requirements of mental retardation that being that he has significant general saab average general intellectual functioning and that he has concurrent adaptive deficit sense for practitioners in the in general practitioners to be using new science while the courts are using old science to court and more recognizes that more that is that the court needs to that the decisions of courts in accurate hearing needs to be informed by the new science this is not a surprise in action he was sentenced to death in for the hearing and the hearing itself was done with an expectation that d s m four was the relevant standard but then the decision comes out using d s m far well i'm not sure that that's the case and as this court recognized in sasser that well let me back up mr jackson knew that there was a potential change in the wind he cross examined dr mccaw about it  and so it wasn't a surprise that this change was coming and second of all the question about whether the d s m and the linkage in this case is really a moot question because mr jack on simply didn't a stablish either prong of mental retardation he didn't stablished that he had significant job average general intellectual functioning the court specifically credited the testimony of doc the a bat to mr jackson's brother so whether there was a requirement of linkage or no linkage is really moot in this case because neither prong was a stablished by a preponderance of the thirteen is that right yes and the hearing wasn't into it until two thousand and sixteen the hearing in this case was in two thousand and eleven but the order wasn't until the order wasn't existence at the time hearing so it isn't even preparation for the hearing that it's actually hearing itself right yes and and and i think that mr jackson's argument would have more weight if he had established either pronk at the hearing but he didn't establish either pron and what he's asking for is not a chance to go back and he's asking for a chance to go back in establish what he did not establish to the district court satisfaction over the course of a two day hearing he was able to present the expert of his own choosing he was able to present all the witnesses he wanted including his brother and the district court simply found that his that he had failed to meet th and let me let me explain see why i disagree yes doctor more doctor make bob the state's expert testified that there are problems with testing form a lingering in in cases of mental retardation dr also testified that is something that had to be done and that it is the number one rule out to determine whether someone is putting forth about their best effort including in a case like this where mullingar during his testing and found that dr murray vas testing dr moneypenny testing and testing conducted on mr jackson in conjunction with the cold claims or murder trial in one nine hundred ninety quote were not reliable evidence of intellectual functioning unquote and so when you take those scores out of the mix and you look at us older scores which are on page ninety six of the joint appendix there are numerous problems with those older scores too but nevertheless the district court recognized that in hall versus florida the supreme court sad if you have tests which with the standard  measurement take year to that seventy cutoff point or below you're entitled to put on evidence of adaptive functioning that's all and that's what mr jackson got he got a chance to put his course on the district court noted that these prior scores go above seventy didn't preclude a finding of mental retardation and went ahead and let him put his adaptive deficit evidence on which the court gave no weight to the prior testing however conducted from the was seven years old to right before he was incarcerated for the cole closure murder as document bought testified there's numerous problems with his old data and she couldn't say that this old data was reliable he had no raw data to double check the scores and make sure the scores were accurate he had no reports except for in one instance to even verify what version of the test was given and whether a licensed psychologist had given the task in some cases he didn't know what version of the test had been given and so well in any of three cases in of the prior tasks were invalid for a diagnosis of mental retardation and when you look at the prior scores they were fraught with the error that document thought testified to but even even if you or that his adaptive deficit that dense was unpersuasive she gave it no weight that the argument that the old scores are valid to determine mental retardation sort of sounds a little bit like a catch twenty two because as i understand under both the d s m four and five four specifically says it has to be shown the start before age eighteen and i think five percent it's more general beef during the age of during the developmental period so if a person comes in and in order to meet that prong the third prong if you are caught that and says i have a whole set i have i q scores and testing from grade school that show i was mentally retarded then the response was well yeah but they're  all that you can't rely on them but you have to show something that's old to get past the if they didn't have the scores you'd be on here arguing where he has no evidence of this occurred before age eighteen let me try let me think about that the problem is that it's mr jackson's burden that's what sadness and if he comes in with advent that cannot be trusted and that cannot be credited that doesn't fall on the scale and these horrors we don't know what dr moneypenny did to validate these scores we don't know whether there were reports out there we don't know through the knowledge that a licensed psychologist administered it through even a report that i can read to see what version of the test was given it is a failure of mr jackson and all of the scores were locally obtained mr jackson was born and raised in little rock the crimes occurred in little rock in jefferson county and so it's not the state's burden to  hearing if he didn't reach his burden after a two day hearing on limited hearing where he was allowed to present what he needed or wanted to present that simply can't be the fault of the state certainty as to whether jackson is intellectually disabled as defined under acton's in arkansas law and there's a little bit of a discussion about that if we look at the transcript of this hearing how did you how did dr make raw flesh that out what is that what does that mean what was he what point was he making by that testimony requires less proof than a forensic opinion and document vos that that was because in a clinical studying the standards aren't as rigorous in a forensic studying he said the expert is attempting to try to help the fact finder with a psycho legal issue and so the standards are more rigorous he wasn't comfortable given the invalid data and the problem with the data in this case making a forensic opinion but clinically document vaal was the be opinion that he wasn't mentally retarded and that mr jackson was at least mid borderline always saying that when you talk about a forensic opinion he's saying he's not comfortable suggesting to the court what decision the the judge should make on this adkins an arkansas law question of couldn't do it but again i'd like to end this question of intellectual disability or retardation that's under africans and under the arkansas  these these problems are factors that is where the court to decide it's not a it's not a strictly a medical or a psychologist or the re arm of the sakala just opinion exactly and in fact more nurses texas says that the mental retardation analysis or decision is for the court although it is informed by the medical community and the psychological community and but any noted that just court's decision is quote constrained by new the new the new science which is why we go back to the d s m fi before i wrap up if the court doesn't mind i would like to address a few points made by mr rosen where i think that perhaps we disagree he retardation with the facts of the crime well that's not what the court did here the court linked the general sub average functioning with the adaptive deficits which is what the d s  m five permits and indeed requires i'm not sure the turner case simply said that you can't link you can't find that you can't find a person not mentally retarded retarded based soley on the facts of the crime you have to look past that that's not what the district court did here so i'm not i'm not positive that we agree on the application of the ten hour hey sort do some at least discussion of those facts and pointing out the planning and reasoning process that went in into particular the coal claims your murder and then as well kind of the ambush at the prison yes the court didn't fact do that and that's proper what's not proper under to nard is to make a finding on either progress of the mental retardation task the intellectual prog or the deficit problem based solely upon that conduct and that was a problem in janardan and here we don't have that the court looked at the testimony of all the experts it looked at the prior scores it looked at the to come up at the conclusion that mr jackson simply had met his burden by doing that it didn't graft or in graft a dentition a requirement for mr jackson to prove what he did was exactly what the law contemplates it looked at everything it let the science inform it and it made a decision but nevertheless the court had already found by the time it talked about the facts of mr jackson's crimes the court had already found that mr jepson had not proven either prong of the mental retardation test before it even went into this discussion about the maladaptive traits that were mentioned by the atkins quote despite the court in atkins and so whatever it said at that point the conclusion had already been made that mr jackson simply had failed in his burden to establish either problem of the mental retardation definition as required under arkansas law which of course is the standard we use under aca end and so while that interesting and while it's i think helpful because as document thought testified more data less error and so you do look at  report in this case compared to document vos sixty one page report and so the court was only doing what the case law in visions and that is making a clean clear picture question so this is not going dull good phenomenon here for mr jackson answer it is not i mean there's no question that these that these events occurred before the age of eight that his problems occurred before the age of eighteen and it would just it would be clearly erroneous to you hold it that it that it was not for the age of eighteen when everyone not only  the contemporaneous records but the testimony at his trial when mr jackson was ninety percent eighteen or nineteen talking about things that happened just a few years earlier plus even dr  e to handle handle him and not and not not something that would have happened in or necessarily happened in a rural area but you handled it but he was in the he was in the system for a long t and of course the case is also also recognized there one can have strengths in certain areas and that doesn't affect the fact that it's that you have been deficit in the other area because the condition